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HomeMy WebLinkAbout01-2451 FX ? 2 5 2006 73ay? LEE E. OESTERLING, Plaintiff Vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-2451 CIVIL TERM WENDY J. TOBIN, Defendant IN CUSTODY ORDER OF COURT AND NOW this z-- r' day of %vIr., ? 2006, upon consideration of the attached Petition, a conference is hereby scheduled, in the chambers of the undersigned, on , the 7-9' day of Aqt. , 2006, commencing at lo , 30 o'clock -A .m. Counsel may participate by telephone if they make prior arrangements with the undersigned or his staff prior to the time set for the conference. BY THE COURT, Z4 J. Distribution: `? Q -Samuel L. Andes, Attorney for Plaintiff, P.O. Box 168, Lemoyne, PA 17043 Joanne Harrison Clough, Attorney for Defendant, 24 N. 32nd Street, Camp Hill, PA 17011 b .. ?? F??tr?55'R"iss`9[?daEF:rmJ? atnsbu8hu oa,x?ttL?cAkr7E _ - wm?_ .. kE P L? Gd°3 ' _ Lod Lt1l t^i _'=_ .t C? w ti c? cv C? ?q` LEE E. OESTERLING, Plaintiff Vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-2451 CIVIL TERM WENDY J. TOBIN, Defendant AND NOW this IN CUSTODY ORDER OF COURT day of 2006, upon consideration of the attached Petition, and following a conference with counsel regarding this matter, we hereby order and decree as follows: 1. The Plaintiff, Lee E. Oesterling, is hereby awarded temporary custody of his two sons, Andrew J. Oesterling, born May 29, 1994, and Daniel J. Oesterling, born October 17, 1997, from 4 p.m. on Friday, September 1, 2006, until 4 p.m. on Tuesday, September 12, 2006. 2. The Plaintiff shall notify the Defendant, in writing, prior to September 1, 2006, of the itinerary for his planned trip with the children to Florida along with the address and telephone number of the location where the children will be staying with Plaintiff. 3. The parties will cooperate with each other and the children to assist them in making up any school work the children miss as a result of this trip. BY THE COURT, J. Distribution: Samuel L. Andes, Attorney for Plaintiff, P.O. Box 168, Lemoyne, PA 17043 Joanne Harrison Clough, Attorney for Defendant, 24 N. 32nd Street, Camp Hill, PA 17011 ?I II LEE E. OESTERLING, Plaintiff VS. WENDY J. TOBIN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-2451 CIVIL TERM IN CUSTODY PLAINTIFF'S PETITION FOR EMERGENCY RELIEF AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and petitions the Court for emergency relief in this matter, to allow him to have the children for a period of vacation, based upon the following: 1. The Petitioner herein is the Plaintiff. The Respondent is the Defendant. 2. The parties are the parents of three minor children, Heather E. Oesterling, born 18 March 1992, Andrew J. Oesterling, born 29 May 1994, and Daniel J. Oesterling, born 17 October 1997. Those children are the subject of prior orders of this Court. 3. Pursuant to the orders entered in this custody action, Plaintiff is entitled to periods of vacation custody with his children on reasonable notice to the Defendant. 4. Plaintiff has made arrangements to take the two younger children on a vacation to Disney World in Orlando, Florida, over the Labor Day weekend and the week that follows that. Pursuant to those arrangements, he has arranged a condominium to be used by him and the other members of his family and has made arrangements with the schools which the two younger children attend for them to be absent from school for the trip. 5. In May of 2006, Plaintiff notified Defendant of his plan to take the children to Disney World over the Labor Day weekend and the following week. Shortly thereafter, Defendant, through her attorney, objected to such plans because the children would be taken out of school. 6. In the past, Defendant herself has taken the children from school for her periods of vacation. 7. Plaintiff believes that the trip he has planned for the children will be beneficial to them. It will open vacation and educational opportunities they do not now have, it will permit them to spend time with their father, their stepmother, and step-siblings, and will give them a wonderful opportunity for a vacation at the leading vacation destination in the United States. 8. Plaintiff has reviewed this matter with the children's schools and been assured that they will not have difficulty making up their school work and that their absence from school will not cause an unreasonable interruption of or interference with their schooling, particularly at the early part of the school year. 9. Plaintiff has attempted, repeatedly, to resolve this matter with the Defendant but the Defendant has repeatedly refused to allow Plaintiff to take the children with him on the family vacation he has planned. WHEREFORE, Plaintiff prays this Court to enter an order granting him temporary custody of his children from 4 p.m. on Friday, 1 September 2006, until 4 p.m. on Tuesday, 12 September 2006, to permit the two younger children to accompany Plaintiff and his family on a vacation to Florida. C??Y: Samuel L. Andes Attorney for Plaintiff Supreme Court ID # 17225 P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: 5 -/,, - 06 r, Vs G' ?; ?a Ilk 6 APR 2 72001 IN THE COURT OF COMMON PLEAS FOR THE NINTH JUDICIAL DISTRICT, CUMBERLAND COUNTY, PENNSYLVANIA LEE E. OESTERLING Plaintiff, V. WENDY J. TOBIN Defendant NO. 01- a Y5_/ Civil Action - Custody ORDER AND NOW, upon consideration of the attached Complaint, it is hereby directed that the parties and their respective counsel appear before the Custody Conciliator Esquire, on the day of . 2001 at in. at the following location, Pre-Hearing Custody Conference. At such Conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished , to define and narrow the issues to be heard by the Court, and to enter into a Temporary Order. All children age five or older may also be present at the Conference upon request of either party. Failure to appear at the Conference may provide grounds for entry of a temporary or permanent Order. Date: FOR THE COURT Custody Conference Officer YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Dauphin Co. Lawyer Referral Services 213 N. Front Street Harrisburg, PA 17101 (717) 232-7536 Law Offices of Hazlett & Oesterling 20 South Market Street Mechanicsburg, PA 17055 (717)-790-0490 IN THE COURT OF COMMON PLEAS FOR THE NINTH JUDICIAL DISTRICT, CUMBERLAND COUNTY, PENNSYLVANIA LEE E. OESTERLING Plaintiff, V. WENDY J. TOBIN Defendant NO- V /- a 25l Oc?j 7.w Civil Action - Custody COMPLAINT FOR CUSTODY 1. The Plaintiff is Lee E. Oesterling, an adult individual, sui juris, who resides at 606 South York Street, City of Mechanicsburg, County of Cumberland, Commonwealth of Pennsylvania, 17055. 2. The Defendant is Wendy J. Tobin, an adult individual, sui juris, who resides at 1002 South Market Street, City of Mechanicsburg, County of Cumberland, Commonwealth of Pennsylvania, 17055. 3. Plaintiff seeks custody of the following children: Name Present Residence Age Heather E. Oesterling 1002 S. Market Street, Mechanicsburg, PA 17055 ; 9 y/o (3-18-92) Andrew L. Oesterling 1002 S. Market Street, Mechanicsburg, PA 17055 ; 6 y/o (5-29-94) Daniel J. Oesterling 1002 S. Market Street, Mechanicsburg, PA 17055 ; 3 y/o (10-17-97) 4. The children were born in wedlock. 5. The children are presently in the custody of Defendant with partial custody rights to Plaintiff. 6. During the past five years, the children have resided with the following persons and at the following addresses: Person Address Dates Lee E. Oesterling 1002 South Market Street, Mechanicsburg, PA 1996 to 3-2000 Wendy I Oesterling Wendy I Tobin 1002 South Market Street, Mechanicsburg, PA 3-00 to present Tracy Tobin 7. The mother of the children is Wendy I Tobin. 8. She is married. 9. The father of the children is Lee E. Oesterling. 10. He is single. 11. The relationship of plaintiff to the children is that of biological father. 12. The plaintiff currently resides with the following persons: Name Paula Camplese Kelcey Oesterling Teegan Leader Shaden Leader Relationship Girlfriend Daughter Girlfriend's Son Girlfriend's Son 13. The relationship of defendant to the children is that of biological mother. 14. The defendant currently resides with the children and the following persons: Name Relationship Tracy Tobin Huisband 15. Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the children in this or another court. 16. Plaintiff has no information of a custody proceeding concerning the children pending in a court of this Commonwealth. 17. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children. 18. The best interest and permanent welfare of the children will be served by granting the relief requested because: a. Plaintiff has been a stable and caring parent for the children since the parties separation and divorce on or about June 2000. b. Plaintiff has maintained a relationship with the children that have provided for the physical, intellectual, emotional and spiritual well being of the children. c. Plaintiff has maintained the children's contacts with half siblings, extended family and friends. d. Defendant has made every attempt to thwart, diminish and interfere with plaintiff s relationship with the children, to their detriment. e. Since the parties divorce, defendant has insisted that she would level blame at plaintiff for perceived marital wrongs and that she would make sure the children knew who "broke up their home." f. Since the parties divorce, defendant has withheld plaintiff's custody of the children for matters unrelated to the children's best interests. Specifically, based upon a dispute over the refinancing of the marital residence, defendant and her husband refused custody of the children to plaintiff, and secreted the whereabouts of the children. g. Defendant's husband in at least two instances made unprovoked threats towards plaintiff, referred to plaintiff and his family as "psychopaths" and made inappropriate sexual gestures in front of the children." h. Defendant has on at least one occasion, during father's period of physical custody attempted to physically pull the youngest child away from plaintiff, which could have resulted in physical harm to the child. i. Defendant has engaged in a course of conduct whereby she has sought by falsehoods to diminish plaintiff's reputation in the community. Such conduct has had and will continue to create negative repercussions for the children and has forced father to seek legal counsel to institute trade disparagement proceedings. j. Defendant has refused to offer plaintiff make up time when the children are unable to visit due to illness. k. Defendant has solicited the children to attempt to change the custody schedule by involving them directly in sending revised schedules to father. A true and correct copy of one such attempted schedule change is attached hereto as Exhibit 'W. 1. Defendant has circumvented father's parental authority by calling his girlfriend asking her to intervene in schedule changes. in. Defendant has repeatedly promised the children that they could attend events during father's periods of partial custody with complete disregard for father's plans. Furthermore, she has setup a situation whereby father is perceived as "the bad parent" for not conceding to said plans. n. Defendant has sent the children to father's home in torn, disheveled clothing. o. Defendant has sent the youngest child for visitation with father in urine saturated clothes. p. Defendant has sent the children to father's house without feeding them any dinner. q. Defendant and her husband on at least one occasion have used profanity in front of the children when father was 10 minutes late to pick up the children. Statements such as "you're fucking late buddy' and "this is bullshit " were uttered upon father's arrival. r. The children's ability to participate in activities has been severely curtailed due to father's avoidance of situations in which defendant has sought to turn such activities into a platform for addressing perceived marital wrongs. s. Father believes that defendant will not be reasonable in setting aside past disputes for the interests of the children. t. Father believes that court intervention is therefore necessary to reduce conflicts. 19. Each parent whose parental rights to the children have not been terminated and the person who has physical custody of the children have been named as parties to this action. All other persons, named who are known to have or claim a right to custody or visitation of the children will be given notice of the pendency of this action and the right to intervene: Name NONE Address Basis of Claim WHEREFORE, plaintiff, Lee E. Oesterling, requests the court to grant him custody of the child. Respectfully Submitted, In Pro Personam VERIFICATION I verify that upon personal knowledge or information and belief that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn f4lRifi-caTon-tQ authorities. Lee E. Oesterling, Date: Attorney I.D.# 71320 20 South Market Street Mechanicsburg, PA 17055 (717) 790-0490 l?egt'? Dad "M; Z ci u ' n nit -?tA Q ? O wee\j,end ?lan?.-tVtie d - day i z Fetcut-. ary 11a?? Todgm j S d;d of c3o to ;3cY130\ `c-cc)t?e i dick cr.?1 i, ? 1t?- wad=+ ?-a c?et ??t•?0'ne ?:c ;, -Jinn tour ?`; ?=,@ q;r!, _ cod f _?= ycru '?i11 do r S roc curncrr= °ner-c o- ,I N l CD zS -17 ^?(?^ ? -C?? j !fl"' -C! Ql jam rv urn Z }i Cb -? LEE E. OESTERLING IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. WENDY J. TOBIN DEFENDANT 01-2451 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, Thursday, May 03, 2001 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. the conciliator, at 39 West Main Street, Mechanicsburg, PA 17055 on Thursday, May 31, 2001 at 9:00 a.m. for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Dawn S Sunday, Esq 0 Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 PENNSYLVA Ii4 SY Z?? zt r .? .c „= a °?,ms ?-ss:s+w4uea{.':mss .=xs?emes ?rn?^gt"?'.SN9k+} LEE E. OESTERLING, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA WENDY J. TOBIN, Defendant NO. 01-2451 CIVIL ACTION - LAW IN CUSTODY DEFENDANT'S ANSWER AND COUNTERCLAIM TO COMPLAINT FOR CUSTODY AND NOW, comes Defendant, Wendy J. Tobin, by and through her counsel, Reager & Adler, PC and files the following Answer and Counterclaim: 1. Admitted. 2. Admitted. 3. Admitted in part; denied in part. It is admitted that the parties' names, addresses and dates of birth are correct. The remainder of this averment is a legal conclusion to which no responsive pleading is required. 4. Admitted. 5. Admitted. By way of further answer, said custody arrangement is outlined in the parties' Marital Settlement Agreement attached hereto as Exhibit "A". 6. Denied. The children resided with Plaintiff and Defendant until January 2000. The children resided with Defendant only from January 2000 - March 2000. The remainder of the averment is admitted. 7. Admitted. 8. Admitted. By way of further answer, Defendant is married to Tracey Tobin. 9. Admitted. 10. Admitted. However, father resides with his girlfriend, daughter, and his girlfriend's children from a previous relationship. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted. 18. Denied. a. Denied. While it is not disputed that Plaintiff cares for his children, some of his behavior calls into question his stability. b. Denied. Pursuant to the custodial arrangement outlined in the parties' Marital Settlement Agreement, Plaintiff has maintained a relationship with the children. However, based on Plaintiff's behavior, his provision for the physical and emotional well-being of the children is called into question. c. Admitted. Both parties have maintained the children's contacts with extended families. d. Denied. It is denied that Defendant has attempted to thwart, diminish or interfere with Plaintiff s relationship with the children. By way of further answer, it is Plaintiff s vexatious behavior that calls into question his stability as a parent and impacts his relationship -2- with his children. By way of additional further answer, Defendant has never denied Plaintiff visitation and has been more than willing to work around Plaintiffs schedule to accommodate his partial custody schedule. Plaintiff has, on several occasions, failed to present himself for his custodial periods, repeatedly arrived late for custody exchanges, and refused to follow agreements regarding the return of the children. His vexatious behavior has resulted in the parties' exchanging the children at a police station. e. Denied. It is denied that Defendant has sought to level blame against Plaintiff. By way of further answer, Defendant has moved on with her life, has remarried, and is thankful that her prior relationship with Plaintiff has ended. f. Denied. Plaintiff has never been denied visitation with his children and Defendant has been more than willing to accommodate Plaintiffs schedule. In the example mentioned, Plaintiff never appeared at Defendant's home to pick up the children, and it was, in fact, Plaintiffs anger regarding the refinance and not Defendant's that caused problems in this regard. Due to Plaintiffs failure to appear for his custodial period, the parties' daughter, Heather, was taken to her soccer practice. Plaintiff arrived at the soccer field 20 minutes after the scheduled custodial exchange and a confrontation ensued as further described. g. Denied. It is specifically denied that Defendant's husband has made unprovoked threats toward Plaintiff. To the contrary, in the instance above referenced, Plaintiff arrived at Heather's soccer practice and began threatening Defendant's husband. Defendant's husband had previously requested that Plaintiff stop threatening him. It is Plaintiff who left obscenities on Defendant's answering machine, and who specifically informed Defendant's husband that "you don't know how bad your life will get." At the above described incident, Plaintiff was unable to control his anger and physically grabbed Heather's arm and dragged her -3- away from practice. When Defendant's husband attempted to leave the soccer field, Plaintiff blocked him in with his van and began banging on the vehicle, spitting at the vehicle and at Defendant's husband, and tried to open the door to Defendant's husband's car. It was after this incident, based on a report to the Upper Allen Police Department, that the suggestion was made to exchange the children at the police station. It is specifically denied that Defendant's husband has ever called Plaintiffs family "psychopath" or ever made an inappropriate sexual gesture in front of the children. Instead, it is Plaintiff s actions that have precipitated the need to exchange the children at the police station. h. Denied. It is specifically denied that Defendant has physically pulled a child from Plaintiff. See answer 18(g). i. Denied. It is specifically denied that Defendant has engaged in a course of conduct which has diminished Plaintiff's reputation in the community. It is Plaintiffs actions themselves, including his extra-marital affair, the birth of his illegitimate child during the course of his marriage, and his outbursts at the children's extracurricular activities which may have harmed Plaintiffs reputation. This conduct is not a result of any action taken by Defendant and to seek to blame Defendant for Plaintiffs irresponsible conduct is ludicrous. The remainder of this allegation is inferred as some sort of legal threat to which no responsive pleading is required. By way of further answer, Defendant is an at-home care giver and has little contact with any individual who would affect Plaintiff's reputation in the community. In fact, Defendant has referred friends to Plaintiff for bankruptcy services. j. Denied. It is denied that Defendant has refused to work around Plaintiffs schedule. Often times, Plaintiff has varied days and weekend schedules without any problem from Defendant. Byway of further answer, on March 12, 2001, Plaintiffs 6-year old son was -4- sick and stayed at home instead of visiting with Plaintiff. Plaintiff requested additional time with his son the following Friday, but never contacted Defendant to establish this visit. k. Denied. It is specifically denied that Defendant has solicited the children to send revised schedules to their father. To the contrary, Defendant has always encouraged the children to express their feelings and concerns to their father, his girlfriend, stepfather and to her. Further, the importance of the custodial schedule has been stressed with the children. The parties' oldest child is uncomfortable in discussing her concerns with Plaintiff as on the one occasion she attempted to talk about her discomfort in her visits with her father, he became angry and sent her outside alone. Defendant will continue to encourage her children to attempt to openly discuss their concerns with Plaintiff, but obviously has no control in regard to his response. 1. Denied. It is specifically denied that Plaintiff's parental authority has been circumvented. Instead, Defendant has made attempts to work with Plaintiffs girlfriend as she has become an integral part in the children's lives. In response to this specific allegation, the last contact between the two was as a result of an invitation issued directly from Plaintiffs girlfriend to Defendant regarding a child's bingo event. The conversation was pleasant and at no time was Plaintiffs parental authority circumvented, nor was Plaintiff's girlfriend requested to intervene in any way. One would think that Plaintiff would encourage a positive relationship between his ex-wife and his girlfriend. m. Denied. The children are involved in extracurricular activities which may overlap into Plaintiffs time. They likewise infringe on Defendant's time and it is in the children's best interest to participate in such activities. By way of further answer, any time that the children are invited to events not associated with extracurricular activities, such as birthday -5- parties, these events are reviewed with Plaintiff and he is given the final decision as to whether or not he desires to take the children to these events. In fact, on certain occasions, the children have attended these events and Defendant has provided transportation in order to assure that Plaintiff receives some of his time. If it is Plaintiff's desire not to be given the option of whether to agree to these events or not, the children can simply be told that all invitations involving his time shall be denied. However, this circumvents the purpose of legal custody and a parent's right to share in making these decisions. n. Denied. It is denied that the children are sent to the father's home in torn and disheveled clothing. By way of further answer, Defendant gave Plaintiff a box and several bags of the children's clothing so that he would have other clothes for the children at his home. In addition, she sends the children in clothes each weekend and it is often her experience that the children wear the same outfit all weekend. o. Denied. The parties' youngest child is not completely potty trained. Therefore, on occasions, his Pull-up/diaper shall leak. On April 24, 2001, such an instance happened. Defendant pointed this instance out and asked that she be allowed to take the children home because her youngest child had soaked through his Pull-up. This request occurred at 7:25, five minutes prior to the scheduled custodial change. Plaintiff refused to allow Defendant to take the children home because he had five more minutes with the children. This is the only instance to which Defendant has any knowledge regarding urine-soaked clothing. As a father of 4 children, we would assume that Plaintiff understands the difference between a child who is potty trained and one who is not. At no time has Plaintiff been given the children when they are urine-saturated or dirty in any way, and Defendant provides the utmost care for her children. -6- p. Denied. Pursuant to the attached custody agreement, Defendant must feed her children dinner before every weeknight visit. However, Plaintiff is expected to feed his children dinner on Friday of the weekend he has the children. Defendant has never missed feeding her children dinner and, in fact, provides them with a nutritional snack prior to the weekend visitation with Plaintiff. q. Denied. It is specifically denied that Defendant and her husband have used profanity in front of the children. By way of further answer, Plaintiff has used phrases such as, "this is fucking bullshit" several times in front of the minor children. In fact, at any time that Plaintiff does not get his way, he is verbally abusive to Defendant and her husband, has called her a "dirty low life", threatened to remove the children from her and threatened to go to court all in the presence of the children. r. Admitted in part; denied in part. It is admitted that the children's ability to safely and happily participate in activities has been curtailed both due to their father's behavior and his refusal to take them to scheduled practices and games. Specifically, on April 24, 2001, the parties' child Andy had a t-ball game. Mother and her husband sat with other parents and watched the game while Plaintiff spent time in the outfield. The game was over at 7:25 and Defendant requested that she take the children home from the game due to her youngest child being wet, as above described. Plaintiff responded angrily, "No, I have 5 minutes left and I'm taking them with me." He then called Mother a borderline personality. Daniel and Andrew indicated to their father that they wanted to return home with their mother. As the time was now 7:30, Defendant followed him and asked that he return the children. Plaintiff then responded by calling Defendant a "dirty low life" and threatening to remove the children from her and to take her to court. (Please note that this petition was drafted and filed the day -7- following this incident.) Plaintiff grabbed his oldest son's hand and forcibly move him towards his car. Defendant again requested that he return the children, at which time Plaintiff began screaming and using obscenities. All three children were crying and screaming that they wanted to return home with their mother. A friend of Defendant's approached Plaintiff and asked that she be allowed to take the children to remove them from the scene. Plaintiff then began using a stream of obscenities towards her. Plaintiff threatened the third party, yelled obscenities at Defendant, and drove off with the parties' daughter in his van. The police were called and the custodial exchange took place at the police station. s. Denied. It is clear that Plaintiff is having trouble relinquishing control of Defendant. He clearly has issues with controlling his anger, with exhibiting appropriate behavior in public and with the children, and is clearly not acting in the best interest of the children. t. Admitted. Mother, too, believes that court intervention is necessary to reduce conflicts and is requesting that a psychological evaluation be performed in this case to determine the appropriateness of Plaintiff's behavior and the need for additional counseling, both individual and family. 19. Admitted. WHEREFORE, Defendant requests this Honorable Court to deny Plaintiff's petition for custody. COUNTERCLAIM 20. Paragraphs 1 through 19 are incorporated by reference herein. -8- 21. Defendant seeks primary physical custody of her minor children, and requests that a psychological evaluation be performed on all parties and the children. WHEREFORE, Defendant respectfully requests this Honorable Court grant Defendant primary physical custody of the parties' minor children and order psychological evaluations to be conducted on all parties involved in this action. Date: Respectfully submitted, REAGER & ADLER, PC , Esquire 2331 Market Street Camp Hill, PA 17011 717-763-1383 Attorneys for Defendant -9- VERIFICATION I, Wendy J. Tobin, verify that the statements made in the foregoing Answer and Counterclaim are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unworn falsification to authorities. Date: c7? ??l?[ 197 (%?' Wend,7} J. Tobin SEPARATION AGREEMENT FOR LEE E. OESTERLING AND WENDY J. OESTERLING This Agreement is made this 13th Day of April , 2000 at Mechanicsburg, Pennsylvania, between Wendy J. Oesterling, referred to as the "Wife,'' currently residing at 1002 South Market Street, Mechanicsburg, PA 17055, and Lee E. Oesterling, referred to as the ' Husband,'' currently residing at 29 South Point Drive, Mechanicsburg, PA 17055. They are collectively referred to as the "Parties." ARTICLE I. RECITALS Consideration 1.01. The consideration for this Agreement is the mutual benefit to be obtained by both Parties and the mutual covenants and agreements of the Parties to each other. Agreement Voluntary and Clearly Understood 1.02. Each Parry to this Agreement acknowledges and declares that he or she, respectively: (1) Has been advised by counsel but further desires to effectuate an amicable and non-costly settlement of all matters relevant to the dissolution of their marriage. (2) Is fully and completely informed of the facts relating to the subject matter of this Agreement and of the rights and liabilities of the Parties. (3) Enters into this agreement voluntarily. (4) Has given careful and mature thought to the making of this Agreement. (5) Has carefully read each provision of this Agreement. (6) Fully and completely understands each provision of this Agreement, both as to subject matter and legal effect. Agreement Prepared Jointly by Both Parties 1.03. This Agreement has been prepared by the joint efforts of the respective Parties. EXHIBIT Finality of Agreement 1.04. (a) This Agreement shall be submitted to the Court of Common Pleas of Cameron County in which the complaint of the Parties for divorce is now pending for its approval and to which both parties have accepted venue and jurisdiction. The Parties intend this Agreement to be incorporated into and merged with the final divorce decree, and understand that the provisions contained in this Agreement concerning spousal support, child support, custody of children, and visitation are to be subject to the continuing jurisdiction of the Court of Common Pleas of Cumberland County. The Parties agree that these provisions, to the extent that they are not legally waived herein and subject to the provisions herein, may be modified at any time on application of either Party on a showing of changed circumstances, and may be enforced in the manner of a divorce decree. (b) Norwithstanding Paragraph 1.04(a), above, but subject to the terms of ys9.01 herein, (specifically, modification of child support), the Parties intend that the provisions governing the settlement of their property rights contained in this Agreement, as approved by the Court, to be final and nonmodifiable other than by subsequent agreement of the Parties; those provisions are intended to survive any court order or decree of divorce, and are to be enforceable as the independent contractual obligations of the Parties after the entry of any such order or decree. Date of Marriage 1. 05. The Parties were married on July 1661 1988, at Southhampton, Pennsylvania, and ever since that date have been, and are now, husband and wife. Children of Parties 1.06. The names, sexes, and dates of birth of the children of this marriage are as follows: Heather Erin Oesterling, female, 3-18-92; Andrew Lee Oesterling, male, 5-29-94 and Daniel John Oesterling, male 10-17-97. The Parties have no other issue, living or deceased, and have no adopted children. Separation of Parties and Divorce Action 1.07. The Parties agree that no fault grounds for their divorce from the bonds of matrimony currently exist, and they desire to live separate and apart. A complaint for the divorce of the Parties has been filed in the Court of Common Pleas of Cameron County, Pennsylvania, and is now pending. ARTICLE Ii. PURPOSES OF AGREEMENT AND EFFECTIVE DATE Settlement of Property 2.01. It is the purpose and intent of this Agreement to settle forever and completely the interests and obligations of the Parties in all property that they own separately, and all property that would qualify as marital property under the Pennsylvania Divorce Code, Title 23, Section 401(e) and that is referred to in this Agreement as "marital property," as between themselves, their heirs, and assigns. The Parties have attempted to divide their marital property in a manner that conforms to a just and fair standard, with due regard to the rights of each Party. The division is made in consideration of the following facts and circumstances: The length of the marriage, the age of the parties, the educational and occupational background of the parties, the relative earning potential of the parties and the relative financial obligations each party will have separate and apart from each other. The division of existing marital property is not intended by the Parties to constitute in any way a sale or exchange of assets, and the division is being effected without the introduction of outside funds or other property not constituting a part of the marital estate. Support of Spouse 2.02. Excepting husband's right to commensurate alimony in accordance with §9.02 of this agreement. Both parties waive any interest in spousal support, alimony or alimony pendente lite and or counsel fees. Effective Date 103. This agreement shall become effective immediately as of the date of execution. Agreement Contingent on Divorce 2.04. If the contemplated divorce is not granted within 12 months from the date on which this Agreement is executed, the Agreement shall be null and void and of no further force and effect. Effect of Reconciliation 2.05. If after the divorce of the Parties is final, they reconcile and resume cohabitation, regardless of whether they subsequently remarry each other, this Agreement shall remain in full force and effect.. ARTICLE III. DISCLOSURES Warranty of Full Disclosure 3.01. Each Party represents and warrants that he or she has made a full and fair disclosure to the other of all of his or her property interests of any nature, including any mortgage, pledge, lien, charge, security interest, encumbrance, or restriction to which any property is subject. Each Party further represents that he or she has trade a full and fair disclosure to the other of all debts and obligations of any nature for which he or she is currently liable or may become liable. Each Party further represents and warrants that he or she has not made any gifts or transfers for inadequate consideration of marital property without the prior consent of the other. No representation or warranty by either Party in this Agreement or in any writing furnished pursuant to this Agreement contains any untrue statement of a material fact, or omits any material fact required to make the statement not misleading. Each party further warrants that they shall maintain and not harm any property of the other which remains in their possession during the pendency or after the divorce. Accordingly any damage to such property will be reimbursed by the responsible party at replacement value. Additional Warranties by the Parties 3.02 The warrant that as of the date of this Agreement, neither Party has: (1) Incurred any obligations or liabilities except current liabilities incurred in the ordinary course of business. (2) Mortgaged or encumbered any marital property, tangible or intangible. (3) Cancelled any debt or claim or sold or transferred any marital property, except sales out of inventory in the ordinary course of business. (4) Suffered any damage, destruction, or loss, whether or not covered by insurance, affecting marital property, business, or prospects, or waived any jointly held right of substantial value. (5) Entered into any transaction in any way related to any marital property other than in the ordinary course of business. there has been no event or change in condition, financial or other- wise, materially affecting the value of any marital property, other than changes in the ordinary course of business. Access to Tax Returns 3.03. Each Party acknowledges that, to the extent desired, he or she has had access to all joint and separate state and federal tax returns filed by or on behalf of either or both Parties during marriage, Litigation 3.04. There are no actions or proceedings pending against either Parry or involving any marital property at law or in equity, or before any federal, state, municipal, or other governmental body. Neither Party is aware of any facts that might result in any action, suit, or proceeding against either Parry or against any marital property. Neither Party is in default with respect to any order or decree of any court or of any governmental body, and no marital property is liable for the payment of any obligation by order or decree of any court or governmental body. Tax Return Filings 3.05. All federal, state, and local tax returns required to be filed by the Parties have been filed, and all federal, state, and local taxes required to be paid with respect to the periods covered by the returns have been paid. Neither Parry has been delinquent in the payment of any tax, assessment, or governmental charge. Neither Party has had any tax deficiency proposed or assessed against him or her, nor has executed any waiver of the statute of limitations on the assessment or collection of any tax. The tax payment for 1999 shall be made by husband Title to Properties and Assets 3.06. All marital property, and that subsequently acquired, has good and marketable title. No marital property is subject to any mortgage, encumbrance, or restriction, except as disclosed herein. ARTICLE IV. CONFIRMATION OF SEPARATE PROPERTY AND SEPARATE DEBTS Husband's Separate Property 4.01. The Parties confirm that the following property is, at all times during marriage was, and shall after divorce remain, the separate property of Husband: (See attached Memorandum Marked Exhibit "A"). The Parties further confirm that any income from and increases in value in this separate property that accrued during marriage were solely due to reasons wholly independent from any contribution made by Wife, and that this income and appreciation in value is the separate property of Husband. Wife's Separate Property 4.02. The Parties confirm that the following property is, at all times during marriage was, and shall after divorce remain, the separate property of Wife: (See attached Memorandum Marked Exhibit "A"). The Parties further confirm that any income from and increases in value in this separate property that accrued during marriage were solely due to reasons wholly independent from any contribution made by Husband, and that this income and appreciation in value is the separate property of Wife. Separate Property of Husband With Marital Interest 4.03. The Parties confirm that the following property is, at all times during marriage was, and shall after divorce remain, the separate property of Husband: Franklin Templeton Individual Retirement Account. The parties agree to waive distribution of the marital interest of this retirement account in consideration of the distribution of all assets and liabilities that they have effectuated herein. Separate Property of Wife With Marital Interest 4.04. The Parties confirm that the following property is, at all times during marriage was, and shall after divorce remain, the separate property of Wife: Washington Mutual Fund Roth IRA. The parties agree to waive distribution of the marital interest of this retirement account in consideration of the distribution of all assets and liabilities that they have effectuated herein. Release of Interest in Separate Property 4.05. Except as set forth in Paragraphs 4.03 and 4.04, each Parry releases forever any claim to or interest in the separate property of the other as set forth in this Article IV, whether the interest might arise incident to the marital relationship or otherwise. Separate Debts of Husband 4.06. The Parties confirm that the following debts and obligations after divorce shall remain, the separate debts of Husband: All Graduate Loan Debts incurred as a result of Husband°s attendance and completion of Law School and identified by his S# 196-54-9215, Citibank Mastercard #5424180471911229, all bills incidental to ownership and use of 1989 Ford Bronco II. Separate Debts of Wife 4.07. The Parties confirm that the following debts and obligations are, and after divorce shall remain, the separate debts of Wife: Magazine subscriptions, mortgage to York Federal; all debts incidental to occupancy and use of the marital residence including but not limited to maintenance, repairs, improvements and upkeep: all bills incidental to ownership and use of 1995 Ford Aerostar Van Indemnity for Separate Debts 4.08. Each Party agrees to pay his or her separate debts as set forth in Paragraphs 4.06 and 4.07 of this Agreement. Each agrees to hold the other harmless from any and all liability on account of these separate debts and obligations. If any claim, action, or proceeding seeking to hold the other Party liable on account of these debts and obligations is instituted, the responsible Party will at bis or her sole expense defend the other Party, and indemnify the other Party against any loss that he or she incurs as a result of the claim, action, or proceeding. Release of Interest in After-Acquired Property 4.09. All property, income, earnings, and assets acquired by either Party subsequent to the effective date of this Agreement shall be the separate property of the owner Party, and each Party specifically releases any interest in the separate property of the other. Exemption From Equitable Distribution 4.10. Except as set forth in Paragraphs 4.03 and 4.04 of this Article concerning appreciation in value of separate property during marriage, the Parties acknowledge that the existence of and value of all separate property and the existence of and amount of all separate debts as set forth in this Article were not considered in determining the division of the marital property of the Parties as get forth in Article V of this Agreement or the allocation of the joint debts of the Parties as set forth in Article VI. ARTICLE V. DIVISION OF MARI7AL PROPERTY Marital Property 5.01. All marital property of the Parties subject to division in this Article is set forth herein or as part of Exhibit "A" and incorporated by reference. Property to Wife 5.02. Wife shall receive from the marital property, to own and enjoy as her separate property, the following described properties, rights, and interests: 1995 Ford Aerostar and all other property not otherwise provided for herein or listed on exhibit "A" as Husband's. Property to Husband 5,03. Husband shall receive from the marital property, to own and enjoy as his separate property, the following described properties, rights, and interests: 1989 Ford Bronco I and all other property provided for herein or listed on exhibit "A" as Husband's. Disposition of Real Property 5.04 In regard to the marital residence at 1002 South Market Street the parties agree as follows: 1. For the purpose of settlement and compromise, the agreed upon fair market value as of February 31, 2000 is $120,000.00; 2. It is agreed by the parties that Husband shall receive 40% of the equity as of February 31, 2000 as measured by the principal less the fair market value; 3. It is agreed by the parties in accordance with the foregoing paragraph 2 that Husband's equity share in the residence without interest is $13,373.32, however, Husband has agreed to discount this amount to $11,787.00. 4. It is agreed that Wife shall not pay interest for any extended payment of Husband's equity. It is further agreed that Husband shall retain ownership interest in fee simple absolute and Wife shall have exclusive occupancy and shall also retain ownership interest in fee simple absolute. Wife shall not further encumber or transfer interest in the property until Wife pays husband his total share of equity, offsets his share of equity as per §9.02 of this agreement, and removes Husband's name from any loan, mortgage or other liability for the debt on said marital residence. Husband retains the right to demand refinancing or forced sale of the property should Wife be unable or unwilling to meet the aforementioned conditions no later than May 1, 2002. Should Wife be in default at anytime on the mortgage, husband shall have a unilateral right of reentry, right to list and right to sell the marital residence. Furthermore, Wife agrees that should she be in default on the mortgage, that she will within 120 hours of the declared default execute a power of attorney in favor of husband and giving Husband the right to convey the property on her behalf. It is the intent of the parties that the aforementioned conditions be strictly construed and that time be of the essence to said conditions. All constructions shall favor a result which maintains Husbands rights to the marital residence in fee simple absolute. Accordingly, Husband will not be required to transfer title of the property until the aforementioned conditions are met. Sale of Property 5.05. The following property shall be sold as soon as possible and the proceeds from the sale, after payment of all liens, encumbrances, and costs of sale, shall be divided equally between the Parties: None Assumption of Encumbrances and Indemnity 5.06. Each Party assumes all encumbrances and liens on all of the property transferred to him or her pursuant to this Agreement or all property in which that party has exclusive possession or occupancy. Each Party agrees to indemnify and hold the other Party harmless from any claim or liability that the other Party may incur because of any encumbrances or liens. If any claim, action, or proceeding seeking to hold the other Parry liable on account of any lien or encumbrance is instituted, the responsible Party will at his or her sole expense defend the other Party, and indemnify the other Party against any loss that he or she incurs as a result of the claim, action, or proceeding. Property Insurance 5.D7.- All insurance on property transferred pursuant to this Agreement is assigned to the Party receiving or occupying the property, and payment of the insurance premiums from this date on shall be the sole responsibility of the Party to whom the insurance is assigned. ARTICLE VT. PAYMENT OF DEBTS AND OBLIGATIONS Joint Debts 6.01. Wife shall remain responsible for the mortgage to York Federal and all other costs incidental to her ownership and occupancy of the marital residence including, but not limited to, maintenance, repairs and upkeep. Debts to Be Paid 6.01. The following unsecured debts shall be paid as follows: Citibank Visa to be paid by Husband Assumptions by Husband 6.03. Husband agrees to pay and to hold Wife harmless on any debts and obligations-which he has assumed under this agreement. If any claim or action is initiated seeking to hold Wife liable for any of these debts or obligations, Husband will, at his sole expense, defend Wife against the claim or action, and indemnify her against any loss resulting from the proceeding. Assumptions by Wife 6.04. Wife agrees to pay and to hold Husband harmless on any debts which she has assumed under this agreement. If any claim or action is initiated seeking to hold Husband liable for these debts or obligations, Wife will, at her sole expense, defend Husband against the claim or action, and indemnify him against any loss resulting from the proceeding. Subsequent Debts 6.05. Each Party agrees to pay and to hold the other Party harmless from any and all personal debts and obligations incurred by him or her from the date of this Agreement. If any claim; action, of proceeding seeking to hold the other Party liable on account of any future debt or obligation is instituted, the responsible Party will at his or her sole expense defend the other Party against it, and indemnify the other Party against any loss that he or she incurs as a result of the claim, action, or proceeding. ARTICLE VII. SPOUSAL SUPPORT / ALIMONY AND APL Purpose and Intent of Article 7.01. Except as outlined in section 9.02 of this agreement It is the mutual desire of the Parties that Neither party shall pay spousal support, alimony or alimony pendenre lire and both parties waive their respective rights to same. ARTICLE VIII. CUSTODY AND VISITATION OF CHILDREN Custody 8.Q.L The Parties have given serious consideration to the future welfare of their children and agree, subject to the further order of the Court of Common Pleas, that Husband and Wife shall share legal and physical custody and control of the minor children of the marriage. The parties further agree that it ism the best interests of their children to maximize the childrens' contact with both parents. Visitation 8.02. Wife shall have primary physical custody subject to Husband's reasonable rights to visitation / partial custody, which shall be as follows: (a) Husband shall be entitled to exercise visitation with the children on alternate weekends between the hours of 5 P.M., Friday evening, and 7 P.M., Sunday evening, commencing on a Friday to be picked by the parties at final separation. (b) Both parties shall be entitled to exercise visitation with the children each year for 2 uninterrupted nonconsecutive weeks during the period from the first day of June until the twentieth day of August. Each shall reserve the right to select the specific days and agrees to notify the other of the days selected at least 1 month prior to the commencement of the period. Each agrees that whatever arrangements are made for the children's activities during the period designated above shall not interfere with the rights of th other under this clause. (c) Both shall be entitled to exercise visitation with the children on the fallowing holidays between the hours of 10 A.M. and 7 P.M.: Easter, Memorial Day, Fourth of July, & Labor Day, alternating, starting with Wife in year 2000: Easter & 4' of July, Husband: Memorial Day & Labor Day. (d) Husband shall e.ercise visitation with the children during alternate Thanksgiving school vacations, commencing with Thanksgiving 1999. (e) The Parties shall exercise alternate visitation with the children on Christmas Eve from 5:00 p.m. to 12:00 p.m Christmas Day and Christmas Day from 12:00 p.m. to 12:00 p.m. on Dercember 26'. The schedule shall begin with Wife having Christmas Eve in the year 2000. (f) Husband may also visit the children at any time that may be mutually arranged and agreed to by the Parties. (g)- Husband may also visit the children every Tuesday and Thursday after his weekend and every Wednesday before his weekend between the hours of 5:30pm and 7:30pm. Unless otherwise agreed, Wife shall remain responsible for feeding the children. (h) Neither parry will schedule activities with the children during the other parties periods of custody without first obtaining the consent of the other party. Expenses 8.03. During all periods of visitation, and except as otherwise provided herein, Husband shall assume all expenses for the children's support and maintenance. No Waiver 8.04. Should Husband be unable to exercise visitation on any particular occasion, he shall notify Wife a reasonable amount of time before the time for visitation. Any inability or other failure to exercise visitation shall not be considered a waiver of any right to visitation as set forth in this Article. However, should Husband regularly fail to exercise visitation rights during any period, he shall give reasonable notice before again exercising visitation rights during that period. ARTICLE IX. CHILD SUPPORT Regular Payments 9.01. Husband shall pay to Wife for the support, maintenance, and education of their minor children, the sum of $ 791.00 each month. Payment shall be made first day of every month, commencing on March 1, 2000. The Parties agree that this amount is reasonable and sufficient for the needs of each of the children and is based on the financial ability of Husband to pay support. The obligation of Husband to make these payments shall terminate as to each child who dies, reaches the age of majority defined as 18 years, is married, or is otherwise emancipated, whichever of these events occurs first. Notwithstanding any caselaw or interpretation of the doctrines of merger or incorporation, the parties further agree that this payment is not in anyway to be construed as a minimum obligation and that the base level of support may be modified upward or downward in accordance with the support guidelines. The parties agree to reevaluate the guidline support amount every May 1" commencing-May 1, 2001 and adjust the equity payout, if necessary, in accordance with the revised calculations. Husband shall provide wife with a monthly record of any balance due on the hereinafter mentioned offset. Husband's Offset against Equity Owed and Commensurate Alimony 9.02 Beginning on April 1, 2000, Husband's child support payment shall be reduced by 5391.00 to $400.00 per month for a period of 26 months. This will act as an offset of $10,166.00 of the equity owed to husband in accordance with section 5.04 which deals with disposition of real property. Accordingly, at the expiration of 26 months, wife's balance due husband will be $1,621.00 The parties intending to effect a mutual agreement which keeps their children in their familiar surroundings and does not place a harsh burden upon wife to refinance or sell the marital residence further agree as follows: 1. Should wife seek collection of child support through domestic relations, and should an order be entered at guideline amount, Wife agrees to the entry of a reciprocal order in which wife pays husband $391.00 per month in alimony or alternatively wife shall be considered in default of this agreement and wife shall enter a consent judgment for Husband in the amount of $391.00 per month for the balance of the 26 month period in the Court of Common Pleas. Wife shall have upon the presentation of substantial evidence, a counterclaim or offset for non-payment of support. Said alimony would be effective from the date of filing with DRO through to and including May 1, 2002. Said alimony would not act to relieve wife from the lump sum balance of $1,6.21.00 due in May 2002. - Medical Dental and Life Insurance 9.03. During any period of employment of either Parry for which benefits in the form of medical, dental, or other health insurance are provided, the employed Party, or both Parties if both are so employed, shall maintain the children of the marriage as covered dependents under the insurance program. Should there be at any time no insurance providing coverage to the children, Husband shall obtain and maintain in full force and effect a policy of medical insurance for the children. This provision shall not be construed so as to preclude husband from seeking government funded benefits or any other source. Husband shall continue to maintain a life insurance policy with at least $150,000.00 in death benefits with the children as named beneficiaries until the youngest reaches age 18. Uninsured Medical and Dental Expenses 9.04. Husband and wife shall pay all necessary and non-elective or cosmetic, medical, dental, surgical, and hospital expenses not covered by insurance 50% each. Wife shall promptly forward all statements and bills to Husband for payment in accordance with the obligation as defined in this Paragraph. Payment is to be made be Husband directly to the physician, dentist, surgeon, or medical facility that has rendered health care to any minor child. Payments under this section shall terminate as to each child who attains the age of majority- defined as 18 years, marries, or is otherwise emancipated, whichever of these events occurs first. Survival of Obligation 9.05. The Parties agree that the obligation of Husband under this Article shall survive his death and shall constitute a charge on his estate. Dependency Exemption 9.06. The Parties agree each shall be entitled to list the following children as dependents under Internal Revenue Code Sections 151 and 152 on his/her tax return for the following years: even # years through to each child's 18`s birthday, Wife will have Heather & Daniel, with Husband having Heather & Daniel in odd numbered years. The Parties further agree that wife shall be entitled to list the following child (Andrew) as dependent under Internal Revenue Code Sections 151 and 152 on Her tax return in odd years with husband having even numbered years for the following years. 2000 through his eighteenth birthday. To allow Husband to claim the dependency exemption under this Paragraph, Wife agrees to execute and deliver to Husband any written declarations required by Internal Revenue Code Section 152(e)(2) and any regulations promulgated pursuant to that section- The declaration shall be delivered to Husband within 30 days before He is required to file his tax return for the taxable year in which the dependency exemption is claimed. ARTICLE X. TAXES OF HUSBAND AND WIFE Tax Deficiencies and Refunds for Prior Years 10.01. It is agreed that Husband and Wife shall be solely liable for and shall pay without contribution from any and all deficiencies in state and federal income taxes, including penalties and interest, related to the joint income tax returns of the Parties for all years prior to 2000, and shall be entitled to any refund due the Parties for those years. -Husband shall pay any and all costs of defending the Parties against any asserted deficiencies, or of prosecuting any refund claim. Wife agrees to cooperate fully in filing any and all necessary pleadings and documents, including protests, petitions, refund claims, and powers of attorney. Tax Returns for Year of Divorce 10.02. Each Parry shall file a separate return for the year 2000 and shall be solely responsible for the payment of his or her own taxes as reflected by the tax returns, however, wife shall be entitled to the interest deduction for the marital residence. -Each Party agrees to continue to make all books, records, tax returns, journals, ledgers, and any other bookkeeping or financial information of any nature available to the other at any time after the judgment of divorce. Each Parry shall be allowed to consult with the accountants or tax counsel of the other for the purpose of gathering any information necessary for the preparation and filing of any tax return. The Parties agree that, to the extent permitted by law, all deductions and tax credits for 2000 that accrued during the existence of the marriage shall be divided equally between them on their state and federal income tax returns. Tax on Dispositions 10.03. Each Party agrees to bear his or her respective share of the income tax consequences resulting from the sale or disposition of property to third parties pursuant to this Agreement. ARTICLE XI. GENERAL PROVISIONS Release of All Claims 11.01. Except as specifically set forth in this Agreement, each Party to this Agreement releases the other from all claims, liabilities, debts, obligations, and causes of action that have been incurred during the marriage between the Parties. General Duty to Indemnify 11. 02. Each Parry represents and warrants to the other that he or she has not incurred any debt, obligation, or other liability, other than those described in this Agreement, on which the other Party is or may be liable. Each Parry covenants that if any claim, action, or proceeding is initiated seeking to hold the other Party liabie for any debt, obligation, liability, act, or omission related to the marriage of the Parties for which that Parry is responsible under the terms of this Agreement, the responsible Party will, at his or her sole expense, defend the other against the claim or action. In addition, each Parry covenants that he or she will indemnify and hold harmless the other Party with respect to all damages resulting from the proceeding. Damages, as used in this Agreement,- shall include any loss, cost, or other liability without limitation that results from the prosecution of any claim, action, or demand. Damages shall also include reasonable attorneys' fees and other expenses incurred in the investigation or in the attempt to avoid the litigation or in enforcing any indemnity. In addition, the damages must result from any inaccurate representation made by or on behalf of either Party to the other in or pursuant to this Agreement, or from a breach of any of the covenants, promises, or obligations made by or incurred by either Party in or pursuant to this Agreement.-Each Party agrees to give the other prompt written notice of any demand, claim, or litigation that is threatened or instituted against him or her and that might constitute the basis of a claim for indemnity pursuant to the terms of this Paragraph. Credit Cards and Accounts 11 A3. All existing charge accounts and credit cards in the names of Husband and Wife, or in the name of either of them under which the other may be extended credit for purchases, shall be closed or surrendered to their issuer as of the effective date of this Agreement. Right to Live Separately and Free From Interference 11.04. The Parties shall live separate and apart from each other, and neither Party shall interfere with the other Party in any respect. Each Party may carry on and engage in any employment or other activity as he or she may deem desirable for his or her sole use and benefit. Neither Party shall interfere with the use, ownership, or disposition of any property now owned or subsequently acquired by the other. Acts Prior to Entry of Divorce Decree 11.05. Each Party agrees that from the date of execution of this Agreement through the date of entry of the divorce decree neither will dispose of any marital property other than in the ordinary course of business, without the written consent of the other. Neither shall enter into any transaction or perforrn any act that would constitute a breach of the representations, warranties, or promises contained in this Agreement. Each Party will afford to the other or their representative, reasonable access, during normal business hours, to the books and records of all marital property, and will cooperate in their examination, No examination, however, shall constitute a waiver or relinquishment by either of the right to rely on the covenants, representations, and warranties of the other as provided in this Agreement. Each agrees to hold in confidence all information so obtained, and any document or instrument obtained pursuant to this Paragraph shall be held on an express trust for and on behalf of the other. Nature and Survival of Representations and Warranties 1 L06 All statements of fact contained in any document delivered by either Parry to the other for information or reliance pursuant to this Agreement shall be considered representations and warranties under this Agreement. All representations and warranties of the Parties shall survive the entry of the divorce decree. Records of Marital Property 11.07. For a period of six years following the date of entry of the divorce decree, the books of account and records of all marital property pertaining to all periods during marriage and prior to the date of entry of the divorce decree shall be available for reasonable inspection by either Party or their representative for use in connection with any lawful purpose. Waiver of Rights to Other Party's Estate 11.08. Each Party waives any and all of the following rights: (1) To inherit any part of the estate of the other at his or her death. (2) To receive property from the estate of the other by bequest or devise, except under a will or codicil dated subsequent to the effective date of this Agreement. (3) To act as a personal representative of the estate of the other on intestacy. (4) To act as an executor under the will of the other, unless nominated by a will or codicil dated subsequent to the effective date of this Agreement. Manner of Payments and Notice 11.09. All payments and notices provided for in this Agreement shall be considered properly and timely made if deposited in the United States mail in an envelope bearing adequate postage and addressed to the recipient at the address specified in this Agreement, or at any other address that may be _designated in writing, on or before the date provided for in this Agreement. Execution of Other Documents 11,10. Each of the Parties shall on demand execute and deliver any document and do any act that may be necessary or desirable to effectuate the provisions and purposes of this Agreement. If either Party fails on demand to comply with this provision, that Party shall pay to the other all attorneys' fees, costs, and other expenses reasonably incurred as a result of the failure. In witness of this Agreement, the Parties set their hands and affix their seals on the date and year written above, with the intent to be legally bound. Wendy Lee E. Witnes Wimes EXHIBIT "A" Item's Currently In Wendy's Possession to be taken by Lee 1. Cherry Bedroom Set consisting of one (1) armoire, 1 Queen Anne dresser and minor and one bed side table all items in very good condition and intact with minimal damage (i.e., minor dents in bottom drawer of armoire and minor dent in surface of dresser) at the time of separation. 2. Queen Size Brass Headboard, Footboard and bed frame in good condition all parts intact at time of separation. 3. Stereo System consisting ofOnkyo speakers, tape deck, turntable, equalizer, amplifier and CD Player 4. Roland Drum machine, guitar effects, amplifier, cords, microphone and 2 flutes 5. Books and various music CD's 6. Some men's clothing in basement closet. All other property that is marital and not otherwise listed shall remain in possession of wife -ife s maintain the property in good condition and make reasonable efforts to and i removal of the property from the marital residence. Lee E. Oes er g Wendy J. 04r I LEE E. OESTERLING, Plaintiff NO. 01-2451 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA CIVIL ACTION - LAW IN CUSTODY CERTIFICATE OF SERVICE I, Debra Denison Cantor, Esquire, do hereby certify that on this date I served the WENDY J. TOBIN, foregoing Answer by depositing a true and correct copy thereof in the United States mail, first class, postage prepaid, addressed as follows: Judith A. Calkin, Esquire 2201 North Second Street Harrisburg, PA 17110 Dater Z' b ? ?IN??i:lt?ifi?lr9 dik3.YR`. tidLo?s`Cd`??1YeL "£S?"?MsV'fSlz 4s?at?4'?r wJYaLt{mYi1ISp.?5'd41I?G.-`? yl {l- > l _? y LEE E. OESTERLING, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 01-2451 CIVIL TERM WENDY J. TOBIN, CIVIL ACTION - LAW Defendant IN CUSTODY ORDER OF COURT AND NOW, this day of 2001, upon consideration of the attached Custody Concili tion Report, it is ordered and directed as follows: 1. The parties shall engage in a course of joint counseling/mediation with Deborah L. Salem or other professional selected by agreement of the parties and counsel. The purpose of the counseling shall be to assist the parties in establishing sufficient communication and cooperation to enable them to effectively coparent their Children. The purpose of the mediation shall be to assist the parties in developing joint decision making skills and to address specific issues currently in conflict. The parties shall follow the recommendations of the counselor/mediator with regard to the duration and frequency of the sessions. The parties shall also obtain recommendations with respect to the need for counseling for any or all of the Children. The parties shall equally share all costs of the counseling/mediation which are not covered by insurance. 2. The Father, Lee E. Oesterling, and the Mother, Wendy J. Tobin, shall have shared legal custody of Heather E. Oesterling, born March 18, 1992, Andrew L. oesterling, born May 29, 1994, and Daniel J. Oesterling, born October 17, 1997. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Children's general well-being including, but not limited to, all decisions regarding their health, education and religion. 3. The Mother shall have primary physical custody of the Children. 4. During the summer school break in 2001, the Father shall have partial physical custody of the Children on alternating weekends from Friday at 7:00 p.m. through Sunday at 8:30 p.m. In addition, the Father shall have custody every week from Tuesday at 5:30 p.m. through Wednesday at 8:00 a.m. and on Thursday from 5:30 p.m. through Friday at 8:00 a.m. All custody exchanges shall take place at the gas station parking area at the Giant grocery store, Cumberland Parkway, Mechanicsburg, except as provided below. Upon providing at least 24 hours advance notice to the Mother, the Father may arrange for Paula Camplese to transport the Children for the exchanges on Wednesday and Friday mornings directly to the Mother's residence at 9:00 a.m. In the event such arrangements are made and appropriate notice provided, Ms. Camplese shall remain in her vehicle during the exchange of custody and shall strictly adhere to the 9:00 a.m. exchange time. 5. Each party shall be entitled to have custody of the Children during the summer for two non-consecutive (unless agreed otherwise) weeks upon providing at least 30 days advance notice to the other party. The parties shall cooperate in permitting vacation periods to run consecutively when reasonable to permit long distance travel. The mother's first week of vacation, for which she has provided notice, shall run from June 16, 2001 through June 231 2001. 6. The parties agree to continue their efforts to establish an ongoing school year custody schedule through the mediation process. Counsel for the parties may contact the Conciliator to schedule an additional Custody Conciliation Conference prior to the beginning of the 2001-2002 school year, if necessary. 7. This order is entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this order by mutual consent. In the absence of mutual consent, the terms of this order shall control. cc: Judith A. Calkin, Esquire - Coun: Dehra D. Cantor. Esouire - CounsE BY THE COURT, VIN'VSIASNNDd wroo tt 'Y 9-N"flP 10 2,0 LEE E. OESTERLING, IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 01-2451 CIVIL TERM WENDY J. TOBIN, CIVIL ACTION - LAW Defendant IN CUSTODY CUSTODY CONCILIATION S[IIMMARY REPORT IN ACCORDANCE WITH CUIBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-81 the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Children who are the subjects of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Heather E. Oesterling March 18, 1992 Mother Andrew L. Oesterling May 29, 1994 Mother Daniel J. Oesterling October 17, 1997 Mother 2. A Custody Conciliation Conference was held on May 31, 2001, with the following individuals in attendance: The Father, Lee E. Oesterling, with his counsel, Judith A. Calkin, Esquire, and the Mother, Wendy J. Tobin, with her counsel, Debra D. Cantor, Esquire. 3. The parties agreed to entry of an order in the form as attached. C/, -?'o "/ Date Dawn S. Sunday, Esquir Custody Conciliator LEE E. OESTERLING, Plaintiff VS. WENDY J. TOBIN, Defendant PRIM JUDGE: Kevin A. Hess : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-2451 CIVIL TERM : CIVIL ACTIN - LAW : IN CUSTODY CRDER OF COURT AND NOW, this Y -_4 day of , 2001, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. The parties shall engage in a course of joint counseling/mediation with Deborah L. Salem or other professional selected by agreement of the parties and counsel. The purpose of the counseling shall be to assist the parties in establishing sufficient communication and cooperation to enable them to effectively coparent their Children. The purpose of the mediation shall be to assist the parties in developing joint decision making skills and to address specific issues currently in conflict. The parties shall follow the recommendations of the counselor/mediator with regard to the duration and frequency of the sessions. The parties shall also obtain recommendations with respect to the need for counseling for any or all of the Children. The parties shall equally share all costs of the counseling/mediation which are not covered by insurance. 2. The Father, Lee E. Oesterling, and the Mother, Wendy J. Tobin, shall have shared legal custody of Heather E. Oesterling, born March 18, 1992, Andrew L. Oesterling, born May 29, 1994, and Daniel J. Oesterling, born October 17, 1997. Each parent shall have an equal right, to be exercised jointly with the other parent, to make all major non-emergency decisions affecting the Children's general well-being including, but not limited to, all decisions regarding their health, education and religion. 3. The Mother shall have primary physical custody of the children. 4. During the summer school break in 2001, the Father shall have partial physical custody of the Children on alternating weekends from Friday at 5:00 p.m. through Sunday at 8:30 p.m. In addition, the Father shall have custody every week from Tuesday at 5:30 p.m. through Wednesday at 8:00 a.m. and on Thursday from 5:30 p.m. through Friday at 8:00 a.m. All custody exchanges shall take place at the gas station parking area at the Giant grocery store, Cumberland Parkway, Mechanicsburg, except as provided below. Upon providing at least 24 hours advance notice to the Mother, the Father may arrange for Paula Camplese to transport the Children for the exchanges on Wednesday and Friday mornings directly to the mother's residence at 9:00 a.m. In the event such arrangements are made and appropriate notice provided, Ms. Camplese shall remain in her vehicle during the exchange of custody and shall strictly adhere to the 9:00 a.m. exchange time. 5. Each party shall be entitled to have custody of the Children during the summer for two non-consecutive (unless agreed otherwise) weeks upon providing at least 30 days advance notice to the other party. The parties shall cooperate in permitting vacation periods to run consecutively when reasonable to permit long distance travel. The mother's first week of vacation, for which she has provided notice, shall run from June 16, 2001 through June 23, 2001. 6. The parties agree to continue their efforts to establish an ongoing school year custody schedule through the mediation process. Counsel for the parties may contact the Conciliator to schedule an additional Custody Conciliation Conference prior to the beginning of the 2001-2002 school year, if necessary. 7. This Order is entered pursuant to an agreement of the parties at a Custody Conciliation Conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT, cc: Judith A. Calkin, Esquire - Counsel f# Father Debra D. Cantor, Esquire - Counsel for mother ©\ ?-3 Q? 4 LEE E. OESTERLING, Plaintiff Vs. WENDY J. TOBIN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-2451 CHILD CUSTODY AGREEMENT AND STIPULATION THIS AGREEMENT made this day of , 2001, by and between LEE E. OESTERLING (hereinafter referred to as "Father") and WENDY J. TOBIN (hereinafter referred to as "Mother") WHEREAS, Father and Mother are the parents of three children to wit: Heather E. Oesterling, bon March 18, 1992 Andrew L. Oesterling, born May 29, 1994 Daniel J. Oesterling, born October 17, 1997 WHEREAS, Father and Mother are divorced and they desire to enter into an agreement condernt?ng-.6e custody of their minor children; 1 t NOW THEREFORE, each party intending to be legally bound, agrees as follows: 1. It is the intention of the parties and the parties agree that they will share joint legal custody of the minor children. The parties agree that major decisions concerning their children, including, but not necessarily limited to, the children's health, welfare, education, religious training and upbringing shall be made by them jointly, after discussion and consultation with each other, with a view toward obtaining and following a harmonious policy in the children's best interest. Each party agrees not to impair the other party's rights to shared legal custody of the children. Each party agrees not to attempt to alienate the affections of the children from the other party. Each party shall notify the other of any activity or circumstance concerning their children that could reasonably be expected to be of concern to the other. Day to day decisions shall be the responsibility of the parent then having physical custody. With regard to any emergency decisions which must be made, the parent having physical custody of the children at the time of the emergency shall be permitted to make any immediate decisions necessitated thereby. However, that parent shall inform the other of the emergency and consult with him or her as soon as possible. Each party shall be entitled to complete and full information from any doctor, dentist, teacher, professional or authority and to have copies of any reports given to either party as a parent. 2. Primary physical custody of the minor children shall be with the mother, Wendy J. Tobin. 3. During the school year Father, Lee E. Oesterling, shall have partial custody of the minor children in accordance with the following schedule: a. Every Tuesday from 4:30 p.m. to 7:30 p.m. b. Every other Thursday from 5:30 p.m. to Sunday at 7:00 p.m. On Father's Friday, the children will take the bus after school to their Mother's where Father will pick them up at 5:00 p.m. 4. During the summer school vacation Father shall have partial custody of the minor children on the following schedule: a a. Every Wedneday from 5:00 p.m. through Thursday at 8:00 a.m. b. Every Thursday from 5:00 p.m. to Friday at 10:00 a. m. c. Every other Friday from 5:00 p.m. to Sunday at 8:30 p.m. 5. Pick up and drop off can occur at each parents residence provided that the children are driven to the home and dropped off without the parent who is driving getting out of the car or pulling into the driveway and the parent who is receiving the children coming to the door to greet them. 6. The parents will alternate the following major holidays: Easter, Memorial Day, Fourth of July, Labor Day, and Thanksgiving school vacation. The custodial period shall run from 10:.00 a.m. to 7:00 p.m. with the exception of the Thanksgiving school vacation which will be from Thursday at 10:00 a.m. to Friday at 7:00 p.m. This schedule will begin with mother having the children for Labor Day, 2001. 7. Christmas will be divided into two (2) segments which segments will alternate year by year between the parents. Segment "A" is from December 24th at 5:00 p.m. to noon on December 25th; Segment "B" is from noon December 25th until December 26th at noon. This schedule will begin with Father having Segment "A" in 2001. 7. Father shall have custody on Fathers's Day from 10:00 a.m. to 7:00 p.m. and Mother shall have custody on Mother's Day from 10:00 a.m. to 7:00 p.m. 8. Both parents are entitled to two (2) nonconsecutive weeks of uninterrupted custody during the summer school vacation. It is understood that a week is defined as seven (7) days which must include the parent's regularly scheduled custodial weekend. Each parent shall provide the other with thirty (30) days notice of his/her intention to exercise the extended custody period. Should either party plan a long distance vacation the parties will cooperate in permitting the weeks to run consecutively. 9. The holiday schedule shall take precedence over the regular custody schedule. 10. During any period of custody or visitation the parties to this order shall not possess or use any controlled substance, neither shall they consume alcoholic beverages to the point of intoxication. The parties shall likewise assure, to the extent possible, that other household members and/or house guests comply with this prohibition. 11. Each parent shall be entitled to reasonable telephone contact with the children when they are in the custody of the other parent. 12. Neither parent shall permanently relocate if the relocations would necessitate a change in the visitation schedule or if the relocation would exceed a fifty (50) mile radius without a minimum notice of sixty (60) days to the other parent. The sixty (60) day notice is designed to afford the parents an opportunity to renegotiate the custodial arrangements or to have the matter listed for a Court hearing. 13. Both parents shall refrain from making derogatory comments about the other parent in the presence of the children and to the extent possible shall prevent third parties from making such comments in the presence of the children. 14. Mother and Father will continue to attend family counseling with Deb Salem so that they may improve their co- parenting skills. 15. The parents desire this Agreement and Stipulation to be made an Order of Court. a4&& A a - 210 -0/ Jud' h A. Calkin, Esq. Date At rney for Plaintiff De r, Esq. At o for Defendant e Wend. Tobin y is jj J' ?vmzst?dCwz ? sef.?wi xsxad??'?.-vw d?ee ?.r,.x?s +?,?.. ?a.?c Ci' C :. - Cr N -, 7 rI C - 7 i3 ............w---o_ --- 1002 Y I AON LEE E. OESTERLING, IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND CO., PENNSYLVANIA VS. NO. 01-2451 WENDY J. TOBIN, CHILD CUSTODY Defendants ORDER OF COURT AND NOW, this /r,day of Ft4rvw, , 2002, the attacherv STIPULATION is hereby approved and made an Order of this Court. Dated: Copies area oz-i 9 -02 e 5 1 m LEE E. OESTERLING INTHE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. WENDY J. TOBIN DEFENDANT • 01-2451 CIVIL ACTION LAW . IN CUSTODY ORDER OF COURT AND NOW, Thursday, September 23, 2004 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Dawn S. Sunday, Esq. , the conciliator, at 39 West Main Street, Mechanicsburg, PA 17055 on Tuesday, October 19, 2004 at 10:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Davin S Sunda'Y,Esq. mhc Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 OF THE R10T Pik l ?? ZOO SEP 21 p& j?i^Lr?y t'. ; ?U?7Vt??? i1 ymvf? &SYLVANIA SEP 2 0 2004 5 IN THE COURT OF COMMON PLEAS OF THE 9th JUDICIAL DISTRICT CUMBERLAND COUNTY, PENNSYLVANIA LEE E. OESTERLING Plaintiff / Petitioner No. 01-2451 V. WENDY J. TOBIN Civil Action-Petition to Modify Child Custody Defendant / Respondent ORDER AND NOW, upon consideration of the attached Complaint, it is hereby directed that the parties and their respective counsel appear before the Custody Conciliator , Esquire, on the day of 2004 at in. at the following location, for a Pre-Hearing Custody Conference. At such Conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the Court, and to enter into a Temporary Order. All children age five or older may also be present at the Conference upon request of either party. Failure to appear at the Conference may provide grounds for entry of a temporary or permanent Order. Date: FOR THE COURT Custody Conference Officer YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland Co. Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF THE 9?h JUDICIAL DISTRICT CUMBERLAND COUNTY, PENNSYLVANIA LEE E. OESTERLING Plaintiff / Petitioner No. 01-2451 V. Civil Action-Petition to WENDY J. TOBIN Modify Child Custody Defendant / Respondent PETITION TO MODIFY CHILD CUSTODY 1. Petitioner is Lee E. Oesterling, a married man, sui juris, and Plaintiff in the underlying action with a principal address of 606 South York Street, Mechanicsburg, Cumberland County Pennsylvania 17055. 2. Respondent is Wendy J. Tobin,a married woman, sui juris and Defendant in the underlying action with a principal address of 1002 South Market Street, Mechanicsburg, Pennsylvania 17055. 3. On February 15`h 2002, the Honorable Kevin Hess entered as an Order of Court a Stipulated Agreement for regarding custody of the parties minor children, Heather Erin Oesterling, (DOB: 3-18-1992, 12 y/o); Andrew Lee Oesterling (DOB: 5-29- 1994); Daniel John Oesterling, (DOB: 10-17-1997), a true and correct copy of which is attached hereto as Exhibit "A." 4. Since the entry of said Order, there has been a significant change in circumstances for the following reasons as hereinafter outlined. (a) The parties live in close proximity to each other and to the children's school(s). (b) The parties have shared custody over the summer in which father has had more substantial and mutually beneficial time with his children to their benefit. (c) Father has a loving and caring relationship with the children and believes it is in their best interests to spend more equal time with father and for him to have more equal parenting role in the children's lives. 5. The Court in modifying said Order for the aforementioned reasons will serve the best interest of the children. WHEREFORE, petitioner prays this Court to grant the modification of the existing Custody Order to allow father custody of the parties children. Lee E. Oesterling, Esquire Petitioner Pro Se 606 South York Street Mechanicsburg, PA. 17055 (717) 691-9435 VERIFICATION I verify that upon personal knowledge or information and belief that the statements made in this Petition are true and correct. I understand that false statements herein are made subiect to the LEE E. OESTERLING, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND CO., PENNSYLVANIA Vs. NO. 01-2451 WENDY J. TOBIN, CHILD CUSTODY Defendants ORDER OF COURT AND NOW, this?S ay of re-- 6ruaru , 2002, the attache' STIPULATION is hereby approved and made an Order of this Court. Dated: / J. rn r N copes -jr1-0 set M, IQ Tes?m LEE E. OESTERLING, Plaintiff VS. WENDY J, TOBIN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-.2451 CHILD CUSTODY AGREEMENT AND STIPULATION THIS AGREEMENT made this day of 20UI, by and between LEE E. OESTERLING (hereinafter referred to as "Father") and WENDY J. TOBIN (hereinafter referred to as "Mother") WHEREAS, Father and Mother are the parents of three children to wit: Heather E. Oesterling, bon March 18, 1992 Andrew L. Oesterling, born May 29, 1994 Daniel J. Oesterling, born October 17, 1997 WHEREAS, Father and Mother are divorced and they desire to enter into an agreement concerning the custody of their minor children; NOW THEREFORE, each party intending to be legally bound, agrees as'follows: 1. It is the intention of the parties and the parties agree that they will share joint legal custody of the minor children. The parties agree that major decisions concerning their children, including, but not necessarily limited to, the children's health, welfare, education, religious training and upbringing shall be made by them jointly, after discussion and consultation with each other, with a view toward obtaining and following a harmonious policy in the children's best interest. Each party agrees not to impair the other party's rights to shared legal custody of the children. Each party agrees not to attempt to alienate the affections of the children from the other party. Each party shall notify the other of any activity or circumstance concerning their children that could reasonably be expected to be of concern to the other. Day to day decisions shall be the responsibility of the parent then having physical custody. With regard to any emergency decisions which must be made, the parent having physical custody of the children at the time of the emergency shall be permitted to make any immediate decisions necessitated thereby. However, that parent shall inform the other of the emergency and consult with him or her as soon as possible. Each party shall be entitled to complete and full information from any doctor, dentist, teacher, professional or authority and to have copies of any reports given to either party as a parent. 2. Primary physical custody of the minor children shall be with the Mother, Wendy J. Tobin. 3. During the school year Father, Lee E. Oesterling, shall have partial custody of the minor children in accordance with the following schedule: a. Every Tuesday from 4:30 p.m. to 7:30 p.m. b. Every other Thursday from 5:30 p.m. to Sunday at 7:00 p.m. On Father's Friday, the children will take the bus after school to their Mother's where Father will pick them up at 5:00 p.m. 4. During the summer school vacation Father shall have partial custody of the minor children on the following schedule: a. Every Wedneday from 5:00 p.m. through Thursday at 8:00 a.m. b. Every Thursday from 5:00 p.m. to Friday at 10:00 a. m. c. Every other Friday from 5:00 p.m. to Sunday at 8:30 p.m. 5. Pick up and drop off can occur at each parents residence provided that the children are driven to the home and dropped off without the parent who is driving getting out of the car or pulling into the driveway and the parent who is receiving the children coming to the door to greet them. 6. The parents will alternate the following major holidays: Paster, Memorial Day, Fourth of July, Labor Day, and Thanksgiving school vacation. The custodial period shall run from 10:00 a.m. to 7:00 p.m. with the exception of the Thanksgiving school vacation which will be from Thursday at 10:00 a.m. to Friday at 7:00 p.m. This schedule will begin with Mother having the children for Labor Day, 2001. 7. Christmas will be divided into two (2) segments which segments will alternate year by year between the parents. Segment "A" is from December 24th at 5:00 p.m. to noon on December 2Fth; Segment "B" is from noon December 25th until December 26th at noon. This schedule will begin with Father having Segment "A" in 2001. 7. Father shall have custody on Fathers's Day from 10:00 a.m. to 7:00 p.m. and Mother shall have custody on Mother's Day from 10:00 a.m. to 7:00 p.m. 8. Both parents are entitled to two (2) nonconsecutive weeks of uninterrupted custody during the summer school vacation. It is understood that a week is defined as seven (7) days which must include the parent's regularly scheduled custodial weekend. Each parent shall provide the other with thirty (30) days notice of his/her intention to exercise the extended custody period. Should either party plan a long distance vacation the parties will cooperate in permitting the weeks to run consecutively. 9. The holiday schedule shall take precedence over the regular custody schedule. 10. During any period of custody or visitation the parties to this order shall not possess or use any controlled substance, neither shall they consume alcoholic beverages to the point of intoxication. The parties shall likewise assure, to the extent possible, that other household members and/or house guests comply with this prohibition. 11. Each parent shall be entitled to reasonable telephone contact with the children when they are in the custody of the other parent. 12. Neither parent shall permanently relocate if the relocations would necessitate a change in the visitation schedule or if the relocation would exceed a fifty (50) mile radius without a minimum notice of sixty (60) days to the other parent. The sixty (60) day notice is designed to afford the parents an opportunity to renegotiate the custodial arrangements or to have the matter listed for a Court hearing. 13. Both parents shall refrain from making derogatory comments about the other parent in the presence of the children and r. to the extent possible shall prevent third parties from making such comments in the presence of the children. 14. Mother and Father will continue to attend family counseling with Deb Salem so that they may improve their co- parenting skills. 15. The parents desire this Agreement and Stipulation to be made an Order of Court. LG / Z -20 - 6/ r? udith A. Calkin, Esq. Date Lee Oest ing AttorneX for Plaintiff / 14 '1 2N X ,) l/-)"2 -dl / 'L i' fe _i Deb Ca t sq. Date Wendy .Tobin At et r Defendant . •. '? ", df aP'?3' , c ewe ...... . _.. ...e.ss.Sm?3wkr^ 4 "?v°&£'mA'b'*.hl€?ie.'?!1tifi ?W6 .. .5`?t "'-• x+d_.L.ss. .i ?? ? ? ?? N C'Y -i ? ? ? ?i rl? ? ? l , ' _ _ `? 1 J ? ? - y{ a ti. V ? \ V G?? f NOV 1 7 2004 ?r LEE E. OESTERLING Plaintiff vs, WENDY J. TOWN Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2451 CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, this /4' day of Nom , 2004, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. The parties shall submit themselves, their minor Children, and any other individuals deemed necessary by the evaluator, to a custody evaluation to be performed by Arnold Shienvold, Ph.D. or other professional selected by agreement between the parties. The purpose of the evaluation shall be to obtain independent professional recommendations concerning ongoing custody arrangements which will best serve the needs of the Children. The parties shall sign all authorizations deemed necessary by the evaluator in order to obtain additional information pertaining to the parties or the Children. The parties agree to initially share all costs of the evaluation equally but preserve the issue as to allocation of evaluation expenses for later determination either by agreement or determination by the Court. 2. Pending further Order of Court or agreement of the parties, the prior Order of this Court dated February 15, 2002 shall continue in effect. 3. The parties shall ensure that Heather is provided with separate sleeping arrangements which afford the Child privacy in both parties' residences. The parties agree that Heather may share a bedroom with the Father's other daughter during the Father's periods of custody. 4. Neither party shall do or say anything, including obscene gestures, which may estrange the Children from the other parent, injure the opinion of the Children as to the other parent, or hamper the free and natural development of the Children's love and respect for the other parent. Both parties shall ensure that third parties having contact with the Children comply with this provision. 5. In the event the Father is more than 30 minutes late for a period of custody and does not contact the Mother either prior to or within the 30 minute period, the Mother shall not be required to continue to make the Children available for the period of custody. In the event the Mother has made an appointment or other obligation in reliance upon the Father assuming custody of the Children in accordance with the partial custody schedule, the Father shall be responsible to make alternate arrangements for the Children's transportation and care during his period of unavailability. i 6. Within 60 days of receipt of the evaluator's written custody recommendations, counsel for either party may contact the conciliator to schedule an additional custody conciliation conference, if necessary. BY THE COURT, cc: ,4 uel L. Andes, Esquire - Counsel for Father anne Harrison Clough, Esquire - Counsel for Mother O V ,q-oK F tom, -"..,, ...Jt11 r? CD -,Jl! t?l N (? LEE E. OESTERLING Plaintiff vs. WENDY J. TOBIN Defendant Prior Judge: Kevin A. Hess IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2451 CIVIL ACT10N LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Children who are the subjects of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Heather Erin Oesterling March 18, 1992 Andrew Lee Oesterling May 29, 1994 Daniel John Oesterling October 17, 1997 Mother Mother Mother 2. A conciliation conference was held on November 10, 2004, with the following individuals in attendance: The Father, Lee E. Oesterling, with his counsel, Samuel L. Andes, Esquire, and the Mother, Wendy J. Tobin, with her counsel, Joanne Harrison Clough, Esquire. 3. The parties agreed to entry of an Order in the form as attached. A)ovevwbw /a, aoo5( 49ii o?-,r Date Dawn S. Sunday, EsquirIP Custody Conciliator RECEIV,O EFt9, 13 200 LEE E. OESTERLING, Plaintiff Vs. WENDY J. TOBIN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-2451 CIVIL TERM IN CUSTODY ORDER AND NOW this / day of . Qg4, 2006, upon the motion of the Plaintiff, Lee E. Oesterling, we hereby schedule a hearing, to be held before the undersigned in Court Room No. of the Cumberland County Court House in Carlisle, Pennsylvania, commencing at j . 3D o'clock 1.m. on ? -1 the day of , 2006. BY THE COURT, J. Distribution: Samuel L. Andes, Attorney for Plaintiff, 525 N. 12`n Street, Lemoyne, PA 17043 Joanne Harrison Clough, Attorney for Defendant, 24 N. 32nd Street, Camp Hill, P 17011 J ' • •.::..... ... qeH #5%ti4&Nkatiti ? ' : ? - d f?tlNYVM?nWi R' . _.• ""4?MPA .: 14-4 Cl Itfdl{tSi r v! J ?N1 an 7?? u D',M1li I LEE E. OESTERLING, Plaintiff VS. WENDY J. TOBIN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-2451 CIVIL TERM IN CUSTODY MOTION FOR HEARING AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and moves the Court for a hearing in the above matter, based upon the following: 1. The moving party herein is the Plaintiff. The responding party is the Defendant. 2. Plaintiff filed a petition to modify the existing custody order in the fall of 2004. A conciliation conference was held before Dawn S. Sunday, Esquire, on 10 November 2004. As a result of that conference, the Court entered an order dated 19 November 2004 which continued the prior custody schedule and directed that the parties obtain a custody evaluation by Arnold Shienvold, Ph.D. 3. The parties have concluded their work with Dr. Shienvold and he filed a custody evaluation report on 10 January 2006. For the most part, Dr. Shienvold recommended no significant change in the present custody schedule. 4. Plaintiff does not believe that Dr. Shienvold's report correctly identified and addressed the problems in this case or offered the parties any meaningful to resolve those problems. As a result, Plaintiff believes that the Defendant continues to interfere with his custodial rights and with his relationship with the children. 4 5. Based upon the history of the parties, including conduct by Defendants since Dr. Shienvold's report, Plaintiff does not believe that the problems between the Plaintiff and the Defendant relating to their children will be resolved by agreement or compromise, even after Dr. Shienvold's report. Plaintiff believes the only way these matters will be successfully addressed is at a hearing before the Court. WHEREFORE, Plaintiff, by his attorney, moves this Court to schedule a hearing on the matters pending before the Court and, following such hearing, to make such modifications in the custody order, to order such counseling, and to take such further action, as the Court deems appropriate. S-amu el L. Ahdes Attorney for Plaintiff 525 N. 12" Street Lemoyne, PA 17043 (717) 761-5361 c 0 I-C 7 -) 65 LEE E. OESTERLING, Plaintiff Vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-2451 CIVIL TERM WENDY J. TOBIN, Defendant IN CUSTODY ORDER OF COURT AND NOW, this 21 S day of +01 , 2006, upon the agreement of the parties, the hearing in this matter which had been scheduled for May 5, 2006 is hereby continued. The matter will now be heard by the undersigned on Friday, 7 July 2006 commencing at 9:00 a.m. Distribution: fuel L. Andes, Esquire (Attorney for Plaintiff) 525 North 12th Street, Lemoyne, PA 17043 ,#(17nne Harrison Clough, Esquire (Attorney for Defendant) 24 N. 32nd Street, Camp Hill, PA 17011 ?W BY THE COURT, v `;t'1 wr ltlk'lLli^til l r? ?! 1 zo X _ IL WyaH Oq 2006 LEE E. OESTERLING Plaintiff IN THE COURT OF COM05-N-N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2451 WENDY J. TOBIN Defendant CIVIL ACTION LAW IN CUSTODY ORDER OF COURT AND NOW, this ,S° day of chin , 2006, upon consideration of the attached Custody Conciliation Report, rt is ordered and directed as follows: 1. The prior Order of this Court shall continue in effect as modified by this Order. 2. During the remainder of the 2005-2006 school year, the Father shall pick up the Children directly from school on his Tuesday evening periods of custody, which shall end at 8:00 p.m., with flexibility in the event the Children are involved in sports or other activities requiring a minor extension of time. 3. During the summer school break in 2006, the parties shall share having custody of the Children on an alternating weekly schedule with the exchange to take place every Friday evening at a time to be arranged by agreement. The alternating weekly schedule shall begin with the Mother having custody of the Children for the week beginning June 9. 4. The parties shall communicate on issues regarding the Children through e-mail rather than having the Children serve as messengers, whenever possible. Neither party shall harass the other or abuse the e-mail communication arrangement. 5. This Order is entered pursuant to an agreement of the parties at a custody conciliation conference. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. BY THE COURT, /1' J. cc: amuel L. Andes, Esquire - Counsel for Father Xoanne Harrison Clough, Esquire - Counsel for rJ 06 \fiN'VAIASNN3d ,kit S0 :41 m S-' ooz AUV'1(yv a iO ? dd LEE E. OESTERLING Plaintiff VS. WENDY J. TOBIN Defendant Prior Judge: Kevin A. Hess IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2451 CIVIL ACTION LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: The pertinent information concerning the Children who are the subjects of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Heather Erin Oesterling March 18, 1992 Mother Andrew Lee Oesterling May 29, 1994 Mother Daniel John Oesterling October 17, 1997 Mother 2. A custody conciliation conference was held on May 2, 2006, with the following individuals in attendance: The Father, Lee E. Oesterling, with his counsel, Samuel L. Andes, Esquire, and the Mother, Wendy J. Tobin, with her counsel, Joanne H. Clough, Esquire. 3. This Court previously entered an Order in this matter on November 19, 2004 following a custody conciliation conference, under which the parties agreed to obtain a custody evaluation from Arnold Shienvold, Ph.D. Following completion of Dr. Shienvold's report, the Father filed a Motion for a Hearing on his Petition for Modification. The hearing has been scheduled for July 7, 2006. The Mother's counsel requested a conciliation conference prior to the hearing in an effort to resolve and limit some of the issues for hearing. The parties were able to agree on a summer custody schedule and minor changes to the school year arrangement pending the hearing. Accordingly, the conciliator submits an Order reflecting the agreements reached at the conciliation conference, with the understanding that the Order scheduling the hearing for July 7, 2006 continues in effect. Dates Dawn S. Sunday, Esquire', Custody Conciliator -- - -.4 JUL v ?? ?/ LEE E. OESTERLING, Plaintiff 0 VS. WENDY J. TOBIN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-2451 CIVIL TERM IN CUSTODY ORDER OF COURT AND NOW this 6 r day of 2006, upon consideration of the attached Motion, the hearing in this matter scheduled for July 7, 2006, is continued generally. It will be rescheduled upon the request of either party at such time as it appears Dr. Shienvold will be available to testify. BY THE COURT, Distribution: muel L. Andes, Esquire (Attorney for Plaintiff) 525 North 12s` Street, Lemoyne, PA 17043 ,J6anne Harrison Clough, Esquire (Attorn ey for Defendant) 24 N. 32id Street, Camp Hill, PA 17011 A 0 ?n a,? t ak 6 LEE E. OESTERLING, Plaintiff VS. WENDY J. TOBIN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-2451 CIVIL TERM IN CUSTODY MOTION FOR CONTINUANCE AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and moves the court for a continuance of the hearing scheduled in this matter for July 7, 2006, based upon the following: 1. The moving party herein is the Plaintiff. The Respondent is the Defendant. 2. This matter has been involved in some status of litigation for many months. In an effort to resolve the dispute between the parties they agreed to have a custody evaluation performed by Arnold Shienvold of Riegler & Shienvold Associates. 3. Dr. Shienvold issued his report on 10 January 2006 and thereafter modified his recommendation by a letter dated 18 April 2006. 4. Dr. Shienvold has gathered a significant quantity of information which the court should have to properly decide this case. He is probably the only neutral party throughly familiar with this matter that can give a neutral and comprehensive report to the court. 5. Both parties have planned on Dr. Shienvold testifying at the hearing set for July 7, 2006 and Plaintiff had scheduled Dr. Shienvold to appear at that time and testify. 6. Plaintiff recently learned that Dr. Shienvold is now scheduled for surgery the morning of 7 July 2006 and, as a result, will not be available to appear at the hearing, to offer testimony, or to otherwise assist the court in this matter. 7. Plaintiff does not believe it will be useful for the court to proceed to take testimony at the scheduled hearing without Dr. Shienvold being present to hear the testimony offered by the parties as well as to submit his recommendations and explain his reasons for those. 8. Plaintiff does not believe that this matter can be properly addressed by the court without the benefit of Dr. Shienvold's testimony, WHEREFORE, Plaintiff prays this court to continue the hearing scheduled for 7 July 2006 to a time, thirty days or more in the future, when Dr. Shienvold can be available to testify. Samuel L. Andes Attorney for Plaintiff Supreme Court ID # 17225 525 North 12s' Street Lemoyne, Pa 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: ue L. Ande +?'4LT .. i?hMH. "4W.T?H4 °`=' `dM'frd?M£"4yiYm'.'?4JVlAA?Jnrs SNiL"sY14Yti'. Vk L ? ,1 f7 1 °i o '? AUG-25-2006(FRI) 13:51 Samuel Rndes, Esq. (FAH)717 761 1435 P.001l001 MAIIdNGADDRrsrs P.d.=Ird U MOM PA VM-0168 tl•MAlla lAwAn" O nUm S,eXV x,,. ANDES AT'kCIk Zy AT LAW tl'Ap WORTA. "Mr-IM 6TIOULT r. O• U" 400 I.>x1.rOTIMI Y>IpNNBYLtiAN'.rA 17049 TIMMMIKx (71,1 Ml•adMl 25 August 2006 SENT By EA & REGULAR MAX The Honorable Kevin A. Hess Judge of the Court of Common Pleas Cumberland County Court Rouse 1 Courthouse Square Carlisle, PA 17013 RE: Lee B. Oesterling vs. Wendy J. Tobin 01-2451 Civil Tenn Dear Judge Hess: The above matter was scheduled for a hearing before you on 7 July 2006. The hearing was cancelled because Dr. Shienvold bad a medical problem that day and was not available to testify. Since that time, with Dr. Shienvold's assistance, the parties appear to have agreed to settle most of the issues raised in that proceeding. We are in the process now of working up a stipulation to be entered to resolve those matters. In the meantime, a new problem has arisen regarding a vacation Mr. Oesterling would like to take with the children in early September. You will receive, hopefully Friday afternoon, a Petition for Emergency Relief requesting permission for my client to take the children on that vacation. Hopefully you will be able to schedule a conference, by telephone if necessary, with Joanne Clougb, Esquire, who represents Ms. Tobin, and myself to try to get that resolved. Thank you for your attention to this matter. Sincerely, J Samuel L. Andes le cc: Joanne H. Clough, Esquire LEE E. OESTERLING, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION-LAW NO. 01-2451 CIVIL WENDY J. TOBIN, Defendant IN CUSTODY ORDER AND NOW, this Slat day of August, 2006, upon consideration of the Petition for Emergency Relief, and following a conference with counsel regarding this matter, we hereby order and decree as follows: 1. The father, Lee E. Oesterling, is hereby awarded temporary custody of his two sons, Andrew J. Oesterling, born May 29, 1994, and Daniel J. Oesterling, bom October 17, 1997, from 4:00 p.m. on Friday, September 1, 2006, until 4:00 p.m. on Tuesday, September 12, 2006. 2. The father shall notify the mother, in writing, prior to September 1, 2006, of the itinerary for his planned trip with the children to Florida along with the address and telephone number of the location where the children will be staying with father. 3. The parties will cooperate with each other and the children to assist them in making up any school work the children miss as a result of this trip. The father is directed to assure that all missed school work is completed. 4. The mother shall receive six make-up days for the custody father will be taking from mother, by father not exercising his Thursday to Friday night custody for the next three periods of his Thursday overnight schedule and mother shall receive father's first regular weekend ..r..: t 4 :. ..0 .. custody after September 12, 2006. .8/amuel L. Andes, Esquire For the Plaintiff VJoanne Harrison Clough, Esquire For the Defendant Am S BY THE COURT, Kevi A. Hess, J. LEE E. OESTERLING, Plaintiff V. WENDY J. TOBIN, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-2451 CIVIL TERM IN CUSTODY DEFENDANT'S ANSWSER TO PETITION FOR EMERGENCY RELIEF AND NOW, this 29th day of August, 2006, comes the above named Defendant, Wendy J. Tobin, by and through her attorney, Joanne Harrison Clough, Esquire, and files this answer to Plaintiff, Lee E. Oesterling's, Petition for Emergency Relief , in opposition to his request to have the children for vacation as follows: 1. Admitted. 2. Admitted. 3. Admitted in part. Denied in part. It is admitted that pursuant to the Orders entered in this Custody Action, Plaintiff is entitled to periods of vacation custody during the summer school vacation with his children upon reasonable notice to the Defendant. It is specifically denied that he is entitled to take that vacation during the school year. To the contrary, the initial Custody Order entered in this case on July 2, 2001, specifically provided for Plaintiff Lee Oesterling's vacation/visitation in Paragraph 5 as follows: Each party shall be entitled to have custody of the children during the summer for two non-consecutive (unless agreed otherwise) weeks upon providing at least 30 days advance notice to the other party. This order was subsequently modified by a new Court Order on February 15, 2002, which specifically provided for Plaintiff s periods of summer vacation in Paragraph 8 as follows: Both parents are entitled to two (2) non-consecutive weeks of uninterrupted custody during the summer school vacation. It is understood that a week is defined as seven (7) days which must include the parent's regularly scheduled custodial weekend. The November 19, 2004 Court Order was entered pending a custody evaluation which was prepared and completed by Dr. Sheinvold in January of 2006. Pursuant to the terms of the November 2004 Court Order, the parties returned for a Custody Conciliation conference on May 5, 2005. The parties were able to agree to implement Dr. Sheinvold's summer physical custody schedule as set forth in his recommendation. The May 5, 2006 Court Order specifically provides in Paragraph 3 that during the summer school break in 2006, the parties shall share having custody of the children on an alternating weekly schedule with the exchange to take place every Friday evening at a time to be arranged by agreement. Paragraph 1 of the May 5, 2006 Order specifically provides that "the prior Order of this Court shall continue in effect as modified by this Order". The February 15, 2002 Court Order provision for summer vacation is still in effect. 4. Admitted in part. Denied in part. It is admitted that Plaintiff may have made arrangements to take the two younger children on a vacation to Disney World in Florida over the Labor Day weekend and the week that follows that. However, it is specifically denied that Plaintiff is entitled to exercise a one week period of vacation with his children during the school year. To the contrary, Defendant Wendy J. Tobin has primary physical custody of the children and Plaintiff father has custody on every Tuesday after school until 8:00 p.m. and every Thursday. Defendant notified Plaintiff on May 11, 2006 that she would not agree to this proposed vacation. Furthermore, Labor Day weekend is Defendant Mother's weekend and the following week is her period of primary custody with the children. Plaintiff is attempting to take a ten day vacation during the school year, and attempting to take six days of Defendant mother's periods of physical custody. Admitted. It is admitted that at the custody conciliation conference in May of 2006, Plaintiff presented Defendant's counsel with a letter of his plan to take the children on vacation from Saturday, September 2, 2006 through September 12, 2006 to Florida. Defendant's counsel immediately thereafter forwarded a letter to Plaintiff's counsel objecting to the vacation because the proposed vacation was not in accordance with the current Court Order and would require the children to miss a full week of school. Defendant specifically objects to Plaintiff taking the children on vacation where the parties' son Andrew, would miss the second week of his first year in middle school. Andrew suffers from Aspergers which is a form of Autism and he has social, emotional and academic specific needs and has an IEP. It is contrary to the best interest and permanent welfare of Andrew and his introduction into the middle school experience for him to miss the second week of school. 6. Admitted. In the past, Defendant did take the children from school in December of 2004 for a Florida vacation, however, Defendant took this vacation during her period of primary physical custody of the children and made arrangements with Plaintiff to switch weekends and to make up time for him for the two evenings of partial custody he missed during her vacation trip. Admitted in part. Denied in part. It is admitted that a trip to Florida would be beneficial for the children to participate in. It is specifically denied that the trip during the time period selected by Plaintiff is in the children's best interest. To the contrary, Plaintiff had approximately twelve weeks of summer vacation where he could have scheduled a vacation trip pursuant to the terms of the Custody Orders which specifically provide that the two non-consecutive weeks of vacation shall be exercised during summer school vacation. By way of further information, Dr. Sheinvold specifically recommended the summer vacation physical custody schedule of week on/ week off between the parties, in part to eliminate the conflict the parties had over selecting and implementing the summer vacation schedule. Paragraph 2 of Dr. Sheinvold's recommendation indicates as follows: "During the summer it is recommended that Wendy and Lee share custody of the children on an equal basis. Beginning on the first full week following the end of school, the children could spend one week at each household. If custody were arranged in that manner there would be no need for a separate vacation schedule for the children. Each parent would be required to take vacation on the days of the custody in the summer. The (school schedule should recommence on the last full week of summer vacation". Based on this recommendation the parties entered into a Stipulation which was reduced to a Court Order on May 5, 2006, whereby the parties had week on/ week off periods of custody of the children during the summer. 8. Defendant is without sufficient knowledge or information to form a belief as to whether Plaintiff in fact spoke to the school regarding removing the parties two sons from school for five school days. The Plaintiff and Defendant have shared legal custody of the parties children and Plaintiff does not have the legal right to withdraw the children from the school during Defendant's periods of physical custody without Defendant's permission. Plaintiff did not consult with Defendant prior to any contact he may have had with the school, and Defendant objects to the children being removed from the second week of school particularly when Andrew has unique educational issues as a result of his Aspergers. 9. Admitted in part. Denied in part. It is admitted that Plaintiff notified Defendant in the first week of May of his intention to take this vacation. It is further admitted that Defendant immediately objected to and refused to agree to the proposed vacation by sending correspondence to Plaintiff s counsel. Since May 11, 2006 Defendant had no further contact from Plaintiff on this issue until last week when he sent several emails announcing again his intention to take the children. Defendant advised Plaintiff and his counsel on May 11, 2006 of her objection. She did not agree to the proposed vacation and Plaintiff father has had four months to make alternate vacation arrangements and failed to do so. NEW MATTER 9. The Court Order of February 15, 2002 is the controlling Court Order regarding the parties' right to exercise vacation custody with the children and it specifically dictates that the vacation is to be exercised during the summer and that the party selecting seven days of custody shall incorporate his or her own weekend in to the vacation period. 10. Plaintiff unilaterally ignored the Custody Order and announced his intention to take the children on vacation during the school year, and during Defendant mother's weekend in direct violation of the Custody Orders, and selected this time to gain an additional six days of custody, instead of using his own periods of summer physical custody. 11. Defendant mother immediately notified Plaintiff via correspondence from her legal counsel to his legal counsel on May 11, 2006 that she did not agree to the proposed vacation. 12. The parties son Andrew suffers from Aspergers, a form of autism and he has had an IEP (Individual Education Plan ) since first grade. Andrew has social and emotional issues as a result of his Aspergers and the transition from elementary school to middle school is a significant event for him and Defendant mother strongly opposes the child missing his second week of his first year of middle school. 13. Plaintiff s proposed vacation schedule takes six days of Defendant mother's primary physical custody schedule, which violates the Court Order of February 15, 2002 which was reaffirmed in the November 19, 2004 and the May 5, 2006 Court Orders. 14. If the Court grants Plaintiff s Petition for Emergency Relief, Defendant Mother will lose 6 days of her period of primary physical custody with the children. WHERFORE, Defendant prays this Honorable Court will deny Plaintiff Father's Petition for Emergency Relief and direct the children return to the primary physical custody of their mother for the school year pursuant to the Court Order. hi the event that the Court grants Plaintiff father's petition, Defendant requests that father be directed to have all missed school work completed on or prior to September 12 and direct that Defendant Mother receive six make up days for the custody Father will be taking from Mother, by father not exercising his Thursday to Friday night custody for the next three periods of his Thursday overnight schedule and that Defendant Mother receive Plainitft s first regular weekend custody after September 12, 2006. DATE: g- Z I - a ?p Respectfully submitted, JOANNE HARRISON CLOUGH, By: `L/ JOANNE ftARRISOl I.D. No. 36461 24 N. 32nd Street Camp Hill, PA 17011 (717) 737-5890 VERIFICATION I, Wendy I Tobin, hereby verify and state that the facts set forth in the foregoing pleading are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn verification to authorities. DATE: 2S 2-2 /6 L `fix (rrJ WENDY OBIN ??1Xam?,CN, sew /+X'?:Gi?x-b auvstr.?.aN?d.Sii r[? ,e.?_e=r. .+2, _n?-.i? a aY':3c<'A -YIDaY' ?? '?mAY 6 c'i N ?, C7 .? ... 17 -,- R ? -I rj`;'- i-` - 2 '?? G. _ CJ -`?' `=j CL7 "i ? ' `? r ??! ?, -,? t ? ?-?? ? -_ CJ -i j ?" p -,t '< ?? CFITVED! SEP 1 2 2006 BY: LEE E. OESTERLING, ) IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vs. ) CIVIL ACTION - LAW WENDY J. TOBIN, ) NO. 01-2451 Defendant ) IN CUSTODY ORDER AND NOW, this 18` day of :Efyk d.v 2006, the Agreement and Stipulation for Entry of Custody Order attached to this Order is hereby adopted and entered as the order of this Court in this matter. BY THE COURT, DISTRIBUTION: Xmuel L. Andes, Attorney for Plaintiff, P.O. Box 168, Lemoyne, PA 17043 panne H. Clough, Attorney for Defendant, 24 N. 32"d Street, Camp Hill, PA 17011 A -mod "Jt ?i SdRi'2I?5?"3?3cv?xYe??3?I3Y'aJi9F?a'L?4'FbeW'i -Mhi? ?YtlR%?Y'if ••?••... •. .. - 11/' d L? f GM s?? ?1 i nj . .; I— LEE E. OESTERLING, Plaintiff V. WENDY J. TOBIN, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-2451 : CIVIL ACTION -LAW : IN CUSTODY AGREEMENT AND STIPULATION FOR ENTRY OF CUSTODY ORDER AND NOW this day of 2006, come the parties, Lee E. Oesterling, herein after referred to as "Father", and his counsel, Samuel L. Andes, Esquire, and Wendy J. Tobin, herein after referred to as "Mother", and her counsel, Joanne Harrison Clough, Esquire, and file the following Agreement and Stipulation For Entry of Custody Order. WHEREAS, Father and Mother are the parents of the following three children, namely Heather E. Oesterling, born March 18, 1992, Andrew J. Oesterling, born May 29, 1994, Daniel J. Oesterling, born October 17, 1997 WHEREAS, Father and Mother are divorced and Father filed a Petition for Modification of Custody in September of 2004 and after the parties completed a Custody Evaluation, they now desire to enter into an agreement concerning the custody of their minor children; NOW THEREFORE, each party intending to be legally bound agrees as follows: 1. Mother and Father shall share joint legal custody of the minor children. The parties agree that major decisions regarding the children, including, but not necessarily limited to, the children's health, welfare, education, religious training, and upbringing shall be made by them jointly, after discussion and consultation with each other, with a view toward obtaining and following a harmonious policy in the children's best interest. Each party agrees not to impair the other party's rights to shared legal custody of the children. Each party agrees not to attempt to alienate the affections of the children from the other party. Each party shall notify the other of any activity or circumstance concerning their children that could reasonably be expected to be of concern to the other. Day to day decisions shall be the responsibility of the parent then having physical custody. With regard to any emergency decisions which must be made, the parent having physical custody of the children at the time of the emergency shall be permitted to make any immediate decisions necessitated thereby. However, that parent shall inform the other of the emergency and consult with him or her as soon as possible. Each parry shall be entitled to complete and full information from any doctor, dentist, teacher, professional, or authority and to have copies of any reports given to either parry as a parent. 2. Primary physical custody of the minor children shall be with Mother, Wendy J. Tobin 3. School year. During the school year, Father, Lee E. Oesterling, shall have partial custody of the minor children in accordance with the following schedule: a. Every Tuesday, commencing when the children are dismissed from school and continuing until 8:00 p.m; b. Every other Thursday, commencing from when the children are dismissed from school until 8:00 p.m.; C. Alternating weekends, commencing when the children are dismissed from school on Thursday and continuing until 7:00 p.m. on Sunday. 4. Summer. During the summer school vacation, the parties shall alternate physical custody of the children on a weekly basis with the parties exchanging the children on Fridays at 5:00 p.m. The summer vacation custody alternating schedule shall commence on the first Friday after school ends and shall terminate the last Friday before school resumes in the Fall. 5. Transportation. Father shall be responsible to pick the children up at school for the commencement of his periods of partial custody on school days. On the days when the children do not have school, Father shall pick the children up at Mother's residence at 3:30 p.m. Mother shall be responsible to pick the children up at Father's residence at the conclusion of his periods of custody. The pickup and drop-off can occur at each parent's residence provided the children are driven to the home and dropped off without the parent who is driving getting out of the vehicle and the parent who is receiving the children coming to the door to greet them. Unless otherwise specified, the party receiving custody of the children shall provide the transportation. 6. Alternating holidays. The parents will alternate the following .holidays: Easter, Memorial Day, Fourth of July, Labor Day, and Thanksgiving. The holiday custodial period shall run from 10:00 a.m. until 7:00 p.m. on each holiday with the exception of Thanksgiving which shall be I y -P from Thursday at 10:00 a.m. until Friday at 7:00 p.m. This schedule shall commence with Father having the children for Labor Day, 2006. 7. Christmas shall be divided into two (2) segments, which segments shall alternate year to year between the parties. Segment "A" is from December 24 at 5:00 p.m. until Noon on December 25s'; Segment "B" is from Noon, December 25th until December 26th at Noon. This schedule will begin with Mother having Segment "A" in 2006 and all even numbered calendar years. 8. Father shall have custody of the children on Father's Day from 10:00 a.m. until 7:00 p.m. and Mother shall have custody of the children on Mother's Day from 10:00 a.m. until 7:00 p.m. 9. Summer vacations. The parties shall select their vacations with the children to be exercised during each parties own custody weeks during the alternating week physical custody schedule. 10. Mechanicsburg Trick or Treat Night. The parties agree to share custody of the children on Mechanicsburg's annual Trick or Treat Night with Mother having custody of the children from 6:00 p.m. to 7:00 p.m. and Father having custody from 7:00 to 8:00 p.m. each year. 11. The holiday schedule shall take precedence over the regular custody schedule. Neither party may select the other party's summer holiday as part of his or her summer vacation. 12. During any period of custody or visitation to this Order shall not possess or use any controlled substance, neither shall they consume alcoholic beverages to the point of intoxication. The parties shall likewise assure, to the extent possible, that other household members and/or house guests comply with this prohibition. 13. Each parent shall be entitled to reasonable telephone contact with the children when they are in the custody of the other parent. 14. Neither parent shall permanently relocate if the relocation would necessitate a change in the visitation schedule or if the relocation would exceed a 50 mile radius without a minimum notice of 60 days to the other parent. The 60 day notice is designed to afford the parents an opportunity to renegotiate the custodial arrangements or to have the matter listed for a court hearing. 15. Both parents shall refrain from making derogatory comments about the other parent in the presence of the children and to the extent possible shall prevent third parties from making comments in the presence of the children. 16. Neither party shall do or say anything, including obscene gestures, which may estrange the children from the other parent, injure the opinion of the children as to the other parent, or hamper r their free and natural development of the children's love and respect for the other party. Both parents shall ensure that third parties having contact with the children comply with this provision. 17. Mother and, Father may continue to attend family counseling with Deb Salem so that they may improve their co-parenting skills. 18. The parties shall ensure that Heather is provided with separate sleeping arrangements which afford the child privacy in both parties' residences. The parties agree that Heather may share a bedroom with the Father's other daughter during the Father's periods of custody. 19. In the event that either party is more than 30 minutes late to commence their period of custody and does not contact the other party either prior to or within the 30-minute period, the other party shall not be required to continue to make the children available for that period of custody and may simply retain custody of the children until the next time the other parent is scheduled to have custody. If either party has scheduled an appointment or other obligation in reliance upon the other party's assuming custody of the children, and in accordance with the partial custody schedule set out in this order, the other party shall be responsible to make alternate arrangements for the children's transportation and care during his or her period of unavailability. 20. The parties shall communicate on issues regarding the children by e-mail rather than having the children serve as messengers whenever possible. Neither party shall harass the other or abuse the e-mail communication arrangement. 21. The parties may modify the provisions of this Order by mutual consent. In the absence of mutual consent, the terms of this Order shall control. 22. The parties desire of this Agreement and Stipulation to be made an Order of Court and request the attached Proposed Order be entered by the Court. WHEREFORE, each person signs his or her name here below, intendi o L. A des n? Date Lee E. Oesterling F for Plaintiff f 21J. o ne Harrison Clo gh Date Wendy J. lVbin la Attorney for Defen ant ?. ?• ,4 -Y 1. o-ry drs va3._2aL€F,YY1.3 x??. uEHa s't ? *, A?ah9roAf.'?'3" .-, ? .r •C/i 1Ti i T J ..-f (o JUN 0 4 2007 LEE E. OESTERLING Plaintiff vs. WENDY J. TOBIN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2451 CIVIL ACTION LAW IN CUSTODY Defendant ORDER OF COURT AND NOW, this ff ` day of 4,,..A- , 2007, upon consideration of the attached Custody Conciliation Report, i is ordered and directed as follows: 1. The parties shall participate in a course of co-parenting counseling with Deborah Salem for a minimum of four joint sessions. The purpose of the counseling shall be to assist the parties in establishing sufficient cooperation and communication to enable them to effectively co-parent their Children and to effectively resolve conflicts in the custodial situation on an ongoing basis. All costs of counseling shall be equally shared between the parties. The parties shall obtain guidance from the co- parenting counselor as to the advisability of therapeutic counseling for the Children. 2. The Mother's alternating weekly period of custody which begins on June 8, 2007 (and includes the Mother's annual shore vacation with the Children), shall terminate on Friday June 15, 2007 at 8:00 p.m., when the Mother shall transport the Children to the paternal grandfather's residence in Richboro, Pennsylvania. BY THE COURT, cc: t 4e E. Oesterling, Father Xanne Harrison Clough, Esquire - Counsel for Mother n /o? ? r 4 N-4 v, LEE E. OESTERLING Plaintiff vs. WENDY J. TOBIN Defendant Prior Judge: Kevin A. Hess IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2451 CIVIL ACTION LAW IN CUSTODY CUSTODY CONCILIATION SUMMARY REPORT IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following report: 1. The pertinent information concerning the Children who are the subjects of this litigation is as follows: NAME DATE OF BIRTH CURRENTLY IN CUSTODY OF Heather E. Oesterling March 14, 1992 Mother Andrew L. Oesterling May 29, 1994 Mother Daniel J. Oesterling October 17, 1997 Mother 2. A custody conciliation conference was held on May 29, 2007 with the following individuals in attendance: the Mother, Wendy J. Tobin, with her counsel, Joanne Harrison Clough, Esquire, and the Father, Lee E. Oesterling, who was not represented by counsel at the conference. 3. The parties agreed to entry of an Order in the form as attached resolving both the Mother's Petition to Modify and the Mother's Motion for Special Relief. 01 ?01 J Cn :1 g?, Date ?- Dawn S. Sunday, Esquire Custody Conciliator